Opinion
NO. 2012 KA 0804
02-15-2013
STATE OF LOUISIANA v. MICHAEL PENNINGTON
Michael Thiel Timothy Fondren Hammond, Louisiana and Frank Sloan Mandeville, Louisiana Attorneys for Defendant/Appellant, Michael Pennington Scott Perrilloux District Attorney Amite, Louisiana Attorney for Plaintiff/Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21st Judicial District Court,
In and for the Parish of Tangipahoa,
State of Louisiana
Trial Court No. 703295
The Honorable Robert H. Morrison, III, Judge Presiding
Michael Thiel
Timothy Fondren
Hammond, Louisiana
and
Frank Sloan
Mandeville, Louisiana
Attorneys for Defendant/Appellant,
Michael Pennington
Scott Perrilloux
District Attorney
Amite, Louisiana
Attorney for Plaintiff/Appellee,
State of Louisiana
CRAIN , J.
The defendant, Michael Pennington, was charged by grand jury indictment with first degree murder. The charge was subsequently amended to second degree murder, a violation of Louisiana Revised Statutes 14:30.1. The defendant pled not guilty. He then filed a motion to suppress statements. A hearing was held and the motion to suppress was denied. Following a trial, the defendant was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two counseled assignments of error and one pro se assignment of error. For the reasons that follow, we affirm the conviction and sentence.
Lionel Richardson, Jr., and Cedric Richardson were also charged. The State filed a motion to sever the defendants which was granted.
FACTS
On August 18, 2007 at about 10 p.m., the defendant, Cedric Richardson, and Lionel Richardson, Jr. went to the home of Byron Williams to rob him. Byron lived alone on Old Baton Rouge Highway in Tangipahoa Parish. Cedric, the uncle of Lionel, and the defendant (who were cousins) knew Byron, so Byron invited all three men into his home.
They all sat down to watch a movie. Lionel went to the bathroom and when he came out, he produced a crowbar which he had retrieved from his 1993 black Thunderbird. Lionel struck Byron in the head with the crowbar. Cedric and the defendant grabbed Byron and held him down while Cedric bound Byron's hands and feet with tie-straps. Lionel continued to strike Byron with the crowbar to quiet him. Finally, Lionel grabbed a shirt and tied it around Byron's neck. He also used the shirt to gag Byron. Lionel then retrieved a knife and stabbed Byron in the shoulder. Byron was dragged to a bedroom and placed underneath the bed. Because the bottom of the bed was low to the ground, Cedric and the defendant lifted the bed while Lionel moved Byron underneath the bed. Cedric and the defendant then lay the bed on top of Byron.
Cedric then left the house and went to a gas station while Lionel and the defendant remained at the house. Cedric returned with several plastic gallon-containers filled with gasoline. All three men poured gasoline around the inside of the house. Someone lit a fire in the bedroom Byron was in and the three men left the house. Byron was still alive when the fire was started. Lionel and the defendant drove away in Lionel's Thunderbird. Cedric took keys from in the house and drove away in Byron's 2005 Ford Super Crew pickup truck. Cedric took $1,500 from Byron's house and several of Byron's credit cards. The defendant was given $200 of that money.
The fire department arrived at Byron's house and quickly extinguished the fire which had not yet spread throughout the house. Only a small fire was burning near the bedroom wall when it was extinguished. The autopsy report on Byron noted he had blunt and sharp-force injuries to the head and neck, but the cause of death was lethal carbon monoxide poisoning.
The next day, August 19, the three men went to Sears and GameStop at Cortana Mall in Baton Rouge and purchased several items, including a Sony PlayStation with Byron's credit cards. That same day, Byron's truck was set on fire behind a pawn shop on Florida Boulevard in Baton Rouge. An eyewitness saw a man walk away from the burning truck and get into a black Thunderbird. The eyewitness got the license plate number for the Thunderbird and contacted the police. Through this information, the police learned that Lionel owned the Thunderbird and where he lived. When the police arrived at Lionel's residence, he was not there but the Thunderbird was and it was impounded.
Lionel and Cedric had absconded to Mexico. The defendant stayed in Hammond. Through video footage at Sears, the defendant was identified, then located and detained. He was taken to the Hammond substation for questioning by Sergeant Gary Baham and Detective Raymond Lentz, both with the Tangipahoa Parish Sheriff's Office. The defendant confessed to his participation in the attack on Byron and identified Cedric and Lionel as participants in the attack. Cedric and Lionel were later arrested in Mexico and extradited. Sergeant Baham took custody of them in Brownsville, Texas.
COUNSELED ASSIGNMENT OF ERROR NO. 1
In his first counseled assignment of error, the defendant argues that the trial court erred in denying his motion to suppress statements. Specifically, the defendant contends the rights form was misleading and he did not expressly waive his rights.
When a court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
We note initially that the defendant refers to the statement he gave to Sergeant Baham and Detective Lentz as two separate statements. During the interview, the defendant spoke for a while then everyone took a break. The defendant went outside to smoke then ate pizza with the officers. Following the break, the questioning resumed and the used audiotape was changed out for a new tape. Considering the questioning and the break, we find the defendant gave a single statement to the police over a period of two hours.
The defendant next asserts that the rights form read to and signed by him was misleading and failed to clearly inform him of his right to consult with a lawyer and to have the lawyer with him during interrogation. The defendant also asserts that Sergeant Baham did not ask him whether he understood his rights or whether he wished to waive those rights and answer questions. We find these arguments to be without merit.
Before a confession may be introduced into evidence, the State must establish that the accused was advised of his constitutional rights under Article I, § 13 of the Louisiana Constitution and the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In State v. Brown, 384 So.2d 425, 426-27 (La. 1980), the Louisiana Supreme Court stated:
When a statement made during custodial interrogation is sought to be introduced into evidence the state bears a heavy burden to show that the defendant knowingly and intelligently waived his right against self-incrimination and the right to counsel. Miranda[.]In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court reiterated that the state's burden is great and that the courts must presume that a defendant did not waive his rights. However, in Butler the Court also held that the waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the statement the words and actions of the person interrogated:
"An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course
of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." 99 S.Ct. at 1757.
In Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986), the United States Supreme Court stated:
Miranda holds that "[t]he defendant may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made voluntarily, knowingly and intelligently." The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. (Citations omitted).
The defendant argues that the rights form was misleading because it contained a "virtually hidden waiver of the right to counsel that is not clearly identified as such." Following the list of the defendant's rights in the form, including "the right to talk to a lawyer and have him present with me while I am being questioned," the following language appears:
A. No one is denying me of my rights, threatening, or mistreating me, either by word or act to force me to answer any questions. No one is giving, offering, or promising me anything whatsoever to make any statement. Any statement I do make will be voluntarily of my own free will and accord.The defendant, along with Detectives Baham and Lentz who signed as witnesses, signed the form. In his brief, the defendant notes the content in paragraphs B and C (above), but asserts that signing the rights form:
B. I knowingly and purposely waive my right to the advice and presence of a lawyer while I am being questioned and I understand that at anytime I decide to exercise my right to a lawyer that all questioning will be stopped and I will not be denied my request for a lawyer.
C. MY SIGNATURE BELOW IS NOT AN ADMISSION OF GUILT, ONLY THAT I HAVE BEEN ADVISED OF MY RIGHTS.
I CERTIFY THAT I HAVE READ MY RIGHTS AND UNDERSTAND WHAT THEY ARE AT:
does not merely signify that the person has been advised of his rights, it waives the right to counsel until and unless the suspect asserts the right after commencement of the interview. Plainly, the waiver of the right to counsel improperly included in the Rights Form muddied the parameters of the right to counsel.
Rights forms, also known as waiver of rights forms, typically contain the rights waiver within the form. The very purpose of the form is to obtain a waiver of rights and allow for questioning. The rights form at issue here specifically conveys to the defendant that he has a right to speak with an attorney and to have him present during questioning. See Florida v. Powell, 559 U.S. 50, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). The form states that no promises were made in exchange for a statement and that any statement the defendant does make would be of his own volition. In fact, by signing the form the defendant specifically acknowledged "That I have the right to remain silent". Thus, by reading the form it is clear that the defendant is being asked to provide a statement only if he chooses. If the defendant did not want to give a statement, he could have either asked for a lawyer or said nothing, both of which options were sufficiently conveyed to him in the form. The defendant chose neither option. The form then states in Paragraph B that the defendant is waiving his right to counsel during questioning and that he can stop the questioning at any time by requesting a lawyer. We find the language in the rights form clearly and unambiguously sets forth the required rights of the defendant.
Moreover, the defendant does not deny he received his Miranda rights. Once the State proves the defendant was given his Miranda rights, any irregularities in the rights form do not render the defendant's waiver of rights invalid. See State v. Glynn, 94-0332 (La. App. 1 Cir. 4/7/95), 653 So.2d 1288, 1302, writ denied, 95-1153 (La. 10/6/95), 661 So.2d 464.
The defendant next complains that the rights form certified that he read and understood his rights even though the time reflects that he was not given time to read the form. He states in his brief that, according to the taped interview, he was given the form to sign at 1:12 p.m. The rights form has 1:12 p.m. for the time he signed the form.
The video of the defendant's interview is determinative. It establishes that Sergeant Baham began speaking to the defendant at approximately 1:09 p.m. Sergeant Baham identified himself and informed the defendant why he was there. Sergeant Baham filled out the rights form in front of the defendant. He asked the defendant his personal information - full name, date of birth, age, etc. - and filled out the top of the form as the defendant relayed the information to him. When Sergeant Baham got to the list of rights section on the form, he turned the form around, slid it toward the defendant, and read the rest of the form to the defendant (except for the final signature certification line). He pointed out where he was reading so that the defendant could follow along. When he finished reading, he gave the pen to the defendant. The defendant took the pen and signed the form. When the defendant gave the form and pen back it was almost 1:14 p.m. From the video, it appears that Sergeant Baham filled out the bottom of the form (time and date) prior to reading the defendant his rights. This would account for the almost two-minute discrepancy between the times on the form and the video. Nevertheless, any time discrepancy is immaterial. The defendant was fully explained his rights. He was allowed to read each right while Sergeant Baham recited them. The defendant never asked to have something explained to him. This claim is also without merit.
The defendant also asserts that Sergeant Baham did not ask him whether he understood his rights or whether he wished to waive those rights and answer questions. The interview reveals that after Sergeant Baham read the defendant each of his rights and confirmed that any statement he gave would be voluntary, he asked the defendant if there was any part that he did not understand. The defendant did not respond. However, he in no way indicated a lack of understanding.
The waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the words and actions of the person being questioned. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). In Berghuis v. Thompkins, _ U.S. _, 130 S.Ct. 2250, 2263-64, 176 L.Ed.2d 1098 (2010), the United States Supreme Court stated:
Thompkins next argues that, even if his answer to Detective Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they obtained a waiver first. Butler forecloses this argument. The Butler Court held that courts can infer a waiver of Miranda rights "from the actions and words of the person interrogated." 441 U.S., at 373, 99 S.Ct. 1755. This principle would be inconsistent with a rule that requires a waiver at the outset. The Butler Court thus rejected the rule proposed by the Butler dissent, which would have "requir[ed] the police to obtain an express waiver of [Miranda rights] before proceeding with interrogation." Id., at 379, 99 S.Ct. 1755 (Brennan, J., dissenting). . . . The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.
* * * * *
In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him.
There is no evidence in the record to suggest that the defendant was intimidated, coerced or deceived in any way which would have led him to waive his right to an attorney (or remain silent) for any reason other than as a function of his free will and understanding. See State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 30, cert, denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). The defendant was adequately informed of his rights, understood those rights, and clearly waived his rights by signing the rights form and making an uncoerced statement to the detectives. See Brown, 384 So.2d at 427-28. Moreover, at no time during the questioning did the defendant invoke his rights to an attorney, to remain silent, or to stop the questioning. This assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 2
In his second counseled assignment of error, the defendant argues that the error in admitting the defendant's statement[s] was not harmless. Since we found no error in the trial court's denial of the motion to suppress, this assignment of error is moot.
PRO SE ASSIGNMENT OF ERROR
In his pro se assignment of error, the defendant argues the trial court erred in denying the motion for mistrial. Specifically, the defendant contends he was denied the right to a fair trial because a prospective juror made reference to other crimes or bad acts.
During voir dire of the first panel of prospective jurors, Kelly Butler told the trial court that she knew the defendant. The following exchange then took place:
By the Court: All right. Tell me how you came to know Mr. Pennington; were you in school together?
By Ms. Butler: We went to school together, and we stayed around the same neighborhood.
By the Court: Okay. When is the last ~ about how long has (sic) been since you've seen Mr. Pennington?
By Ms. Butler: Oh, probably about eight months ~ something like that. The last time he was released.
At this point, defense counsel objected and moved for a mistrial. Defense counsel argued that Butler's reference to the defendant being released could be interpreted by anyone on the panel or in the general venire as the defendant having been incarcerated. Defense counsel asserted that this contravened Louisiana Code of Evidence article 404(B) (impermissible reference to other crimes, wrongs, or acts). In denying the motion, the trial court stated:
I'm going to deny the mistrial, and the reason I'm doing that is the jury is going to know that he was arrested, obviously, for a murder charge. And therefore, that he would have been out at some time. I'm just going to hold that that is not prejudicial to that extent.Butler was the subject of a challenge for cause which was granted, so she did not serve on the jury.
The defendant argues that "[t]he last time he was released" remark was an impermissible reference to other crimes or bad acts. See La. Code Evid. art. 404(B). According to the defendant, "there was no possible way he could have had a fair trial where the jurors were already prejudiced by the mention of [him] committing some other crime prior to the offense he was charged with."
Louisiana Code of Criminal Procedure article 775 provides in part that "[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771." Under Louisiana Code of Criminal Procedure article 770(2), 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 trial or argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Also, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State and would mandate a mistrial. See State v. Boudreaux, 503 So.2d 27, 31 (La. App. 1 Cir. 1986). Here, the alleged prejudicial comment was not made by the judge, district attorney, or court official, but by a prospective juror. Neither was the comment deliberately elicited by the prosecutor. Consequently, the requirements for a mandatory mistrial under Article 770 were not triggered.
Rather, the controlling provision is Louisiana Code of Criminal Procedure article 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 ... 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[.]
In such cases, on 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 is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. A trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Smith, 418 So.2d 515, 522 (La. 1982). See State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. A reviewing court in Louisiana should not reverse a defendant's conviction and sentence unless the error has affected substantial rights of the accused. See La. Code Crim. Pro. art. 921.
The defendant has failed to show clear prejudice from the juror's remark. We find that the remark was vague and too generalized to have had a substantial impact in the minds of the other prospective jurors. The comment "last time he was released" did not directly or indirectly refer to any crime committed or alleged to have been committed by the defendant. Moreover, it was not in response to a question asked by the trial court. It was unsolicited and unresponsive testimony which is not chargeable against the State as a ground for mandatory reversal of a conviction. State v. Thompson, 597 So.2d 43, 46 (La. App. 1 Cir.), writ denied, 600 So.2d 661 (La. 1992). See also State v. Harrison, 32, 643 (La. App. 2 Cir. 10/27/99), 743 So.2d 883, 888-89, writ denied, 99-3352 (La. 6/30/00), 765 So.2d 327 (where, in upholding the trial court's denial of a motion for mistrial based on a prospective juror's comment that the only thing he heard about the defendant was that he was back in jail, the second circuit found the comment was "not only unrelated to other crimes evidence but was an unsolicited response to an intended yes or no question by the state."); State v. Nevers, 621 So.2d 1108, 1111-12 (La. App. 1 Cir.), writ denied, 617 So.2d 906 (La. 1993) (where, in upholding the trial court's denial of the defendant's cause challenges (or even assuming they "were equivalent to requests for a mistrial") of two entire voir dire panels based on two prospective jurors' comments that they had not seen the defendant since he had been in prison, this court found that "neither remark constituted an unambiguous reference to another offense.").
There has been no showing that Butler's comment affected the other prospective jurors. See State v. Edwards, 01-116 (La. App. 5 Cir. 6/27/01), 790 So.2d 109, 115-16, writ denied, 01-2235 (La. 8/30/02), 823 So.2d 935. Nor has there been a showing of any prejudice tending to deprive the defendant of the reasonable expectation of a fair trial. The trial court did not abuse its discretion in denying the motion for mistrial. See Berry, 684 So.2d at 449.
The pro se assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.