Opinion
No. 2009 KA 2143.
May 7, 2010.
ON APPEAL FROM THE 18TH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF WEST BATON ROUGE STATE OF LOUISIANA DISTRICT COURT NO. 074329 THE HONORABLE J. ROBIN FREE, JUDGE PRESIDING.
Richard Ward, District Attorney, Plaquemine, La., Elizabeth A. Engolio, Assistant District Attorney, Counsel for Appellee, State of Louisiana.
Frank Sloan, Mandeville, La., Counsel for Defendant/Appellant, Mark A. Shipley.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
The defendant, Mark A. Shipley, was charged by grand jury indictment with oral sexual battery of G.N., a violation of La.R.S. 14:43.3 (Count 1); sexual battery of G.N., a violation of La.R.S. 14:43.1 (Count 2); molestation of a juvenile of G.N., a violation of La.R.S. 14:81.2 (Count 3); aggravated rape of J.N., a violation of La.R.S. 14:42A(4) (Count 4); sexual battery of J.N., a violation of La.R.S. 14:43.1 (Count 5); oral sexual battery of J.N., a violation of La.R.S. 14:43.3 (Count 6). The defendant entered a plea of not guilty to the charges. Following a jury trial, he was found guilty as charged on all counts.
The indictment alleges the charges wherein G.N. is the victim (counts 1-3) occurred on or about December 25, 2006, and thereafter. The charges wherein J.N. is the victim (counts 4-6) occurred on or about October 1, 1998, through October 31, 2003.
For the oral sexual battery of G.N. conviction (Count 1), the defendant was sentenced to forty years at hard labor without the benefit of probation, parole, or suspension of sentence. For the sexual battery of G.N. conviction (Count 2), the defendant was sentenced to fifty years at hard labor without the benefit of probation, parole, or suspension of sentence, and with the sentence to be served consecutively to the sentence in Count 1. For the molestation of a juvenile of G.N. conviction (Count 3), the defendant was sentenced to fifty years at hard labor without the benefit of probation, parole, or suspension of sentence, and with the sentence to be served consecutively to the sentences in Counts 1 and 2. For the aggravated rape of J.N. conviction (Count 4), the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. For the sexual battery of J.N. conviction (Count 5), the defendant was sentenced to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, and with the sentence to be served consecutively to the sentences in Counts 1 through 4. For the oral sexual battery of J.N. conviction (Count 6), the defendant was sentenced to ten years at hard labor without the benefit of probation, parole, or suspension of sentence, and with the sentence to be served consecutively to all of the other sentences.
The defendant now appeals, designating one assignment of error. For the reasons that follow, we affirm the convictions and sentences.
FACTS
The defendant's victims were his nephews through marriage: J.N., born January 10, 1992; and G.N., born December 13, 1995. Every few months, J.N. and, later, G.N. used to sleep at the defendant's house in Port Allen.
J.N. testified at trial that over several years, from the ages of six or seven years old to eleven years old, while visiting at the defendant's house, he and the defendant engaged in sexual activity. J.N. stated that he and the defendant performed oral sex and anal sex on each other. He stated that he and the defendant had anal sex with each other about twenty times. Sometimes they used lubrication, and the defendant did not use a condom. J.N. also testified that he and the defendant looked at pornographic sites together on the computer.
G.N. testified at trial that on several occasions when he was eleven years old visiting at the defendant's house, G.N. touched the defendant's penis and the defendant touched his (G.N.'s) penis in the defendant's bedroom upstairs. On one occasion, the defendant licked G.N.'s penis. On another occasion, the defendant touched G.N.'s buttocks with his penis. G.N. also testified that one time while he (G.N.) was taking a shower, the defendant grabbed G.N.'s penis. G.N. stated that after three incidents with the defendant, G.N. told the defendant he did not want to do anything anymore. The defendant told G.N. that he was proud of him.
After the defendant was arrested, he was taken to the courthouse complex and interviewed by Major Richard Johnson, with the West Baton Rouge Parish Sheriff's Office. The interview was recorded (audio and video), and a DVD of the recording was played for the jury. In his interview, the defendant admitted that he touched J.N.'s penis, that J.N. touched his penis, and that he had anal sex and oral sex with J.N. The defendant anally penetrated J.N., and J.N. anally penetrated him. Also, the defendant performed oral sex on J.N., and J.N. performed oral sex on him. The defendant stated that J.N. was about eight years old when he began sexually abusing J.N. The defendant agreed with J.N.'s written police report that the last time J.N. and the defendant had done anything sexually together was probably in October 2003.
The defendant initially denied the allegation against him concerning G.N. However, as the interview progressed, the defendant stated that G.N. showed the defendant his penis when G.N. was in the shower. The defendant stated that on another occasion, G.N. touched the defendant's buttock with his (G.N.'s) penis. According to the defendant, G.N. wanted to put his penis in the defendant's anus, but the defendant told him "no." The defendant described this situation as follows:
It's just he was naked. . . . I don't remember how mine came out or whatever. I don't remember the whole situation, but he walked by and it, you know, I guess just cutting up. I don't remember exactly what he — He went, you know, like that towards my butt. That's the way I remember it.
Later during the interview, the defendant elaborated on this incident:
Q. I'm going to tell you what [G.N.] said again about the butt part.
A. Okay.
Q. That you asked him to put his penis in your butt, but all he did was rub it on your butt; he didn't stick it in.
A. No.
Q. Is that true?
A. I don't remember asking him to put it in. I didn't ask him to put it in. You know, like I said, I think what it was was I can't remember if I had my pants down. I don't remember. But he rubbed by, and I kind of just went like that, spread it apart —
Q. Your butt cheeks?
A. Yeah.
Q. Okay.
A. And he went by and did it, and that was it.
Q. When you say did it, tell me what he did.
A. Well, he just rubbed it.
Q. He rubbed his penis on your butt?
A. Yeah. He rubbed his on my butt and that was it.
The defendant denied that he had ever put his mouth on G.N.'s penis. The defendant explained that "[G.N.] was sitting there one time, and I just kind of — While we was — I kind of went like this, but I never went down on him." Major Johnson asked the defendant if there was any reason for anyone to make up anything, or if there was any riff between him and J.N. or G.N. The defendant responded in the negative and added that they always got along.
The defendant testified at trial. He admitted that he had oral sex and anal sex with J.N. The defendant stated that he penetrated J.N. anally once, and J.N. penetrated him anally twice. The defendant denied that J.N. was about eight years old when the defendant started having sex with him, stating instead that they began engaging in sexual activity when J.N. was twelve years old. The defendant denied the allegations regarding G.N. On cross-examination, the defendant testified that on one occasion at his house, the defendant moved his head toward G.N.'s penis but never licked G.N.'s penis. He also testified about an incident at his house where he (defendant) was walking to the closet, and G.N. bumped the defendant from behind and touched the defendant's buttock with his (G.N.'s) penis. The defendant testified his pants were not down. On another occasion, the defendant and G.N. were in the kitchen when the defendant "barely touched" G.N.'s tongue with his tongue.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the trial court abused its discretion in denying his motion to suppress his confession. Specifically, the defendant contends that the Miranda warning referring to his right to an attorney that he received before giving a recorded interview was constitutionally deficient.
At the motion to suppress hearing, Major Johnson testified that he interviewed the defendant during custodial interrogation. The interview was recorded, and a DVD copy of the interview was introduced into evidence. A review of the recording of the interview indicates that Major Johnson provided the following Miranda warnings to the defendant before beginning the interview:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, the court's going to give you one.
In Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege. A defendant must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
In Duckworth v. Eagan, 492 U.S. 195, 202-203, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166 (1989), the Supreme Court stated:
We have never insisted that Miranda warnings be given in the exact form described in that decision. In Miranda itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant." 384 U.S., at 476 (emphasis added). See also Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 1687, 64 L.Ed.2d 297 (1980) (referring to "the now familiar Miranda warnings . . . or their equivalent"). In California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam), we stated that "the 'rigidity' of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant," and that "no talismanic incantation [is] required to satisfy its strictures." Id., at 359, 101 S.Ct., at 2809. . . . Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda." [footnote omitted]. [(quoting Prysock, 453 U.S. at 361, 101 S.Ct. at 2810)].
The narrow issue in this case — whether the Miranda warning "You have the right to an attorney" is adequate to convey to a suspect his right to have counsel present during questioning — has not been resolved by our supreme court or, arguably, the United States Supreme Court, despite its very recent pronouncement on the issue.
In Bridgers v. Dretke, 431 F.3d 853, 859 (5th Cir. 2005), cert. denied, 548 U.S. 909, 126 S.Ct. 2961, 165 L.Ed.2d 959 (2006), the Fifth Circuit has noted the split among the federal circuits with respect to whether the Miranda warning must explicitly provide that a suspect is entitled to the presence of counsel during interrogation. The Fifth, Sixth, Ninth, and Tenth Circuits have interpreted Miranda to require a more explicit warning indicating that a suspect is entitled to counsel during questioning. See e.g., Atwell v. United States, 398 F.2d 507, 510 (5th Cir. 1968); United States v. Tillman, 963 F.2d 137, 140-142 (6th Cir. 1992); United States v. Noti, 731 F.2d 610, 615 (9th Cir. 1984); United States v. Anthon, 648 F.2d 669, 672-674 (10th Cir. 1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982). However, the Second, Fourth, Seventh, and Eighth Circuits under various circumstances have held that warnings are adequate without explicitly stating that the right to counsel includes having counsel present during the interrogation. See United States v. Vanterpool, 394 F.2d 697, 698-699 (2d Cir. 1968); United States v. Frankson, 83 F.3d 79, 81-82 (4th Cir. 1996); cf. United States v. Adams, 484 F.2d 357, 361-362 (7th Cir. 1973) (finding warning adequate but stating that warnings provided to suspects on the street are not expected to be as precise as those given at the police station); United States v. Caldwell, 954 F.2d 496, 500-504 (8th Cir. 1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992) (finding no plain error when warning omitted right to counsel during interrogation).
In support of his position, the defendant cites Florida v. Powell, 998 So.2d 531, 532 (Fla. 2008), reversed. ___ U.S. ___, 130 S.Ct. 1195, ___ L.Ed.2d ___, 2010 WL 605603 (2010). In Powell, the defendant was taken to Tampa Police headquarters. Before Powell was questioned, a police officer read Powell the standard police department form, which stated:
You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.
The trial court ruled the recitation concerning the right to an attorney before questioning was adequate. Powell, 998 So.2d at 532. The appellate court reversed the trial court, finding that the warning given to Powell was "constitutionally flawed because the 'right to talk to or consult with an attorney before questioning is not identical to the right to the presence of an attorney during questioning.'" Powell, 998 So.2d at 533. The Florida Supreme Court framed the issue before it as whether the failure to provide express advice of the right to the presence of counsel during custodial interrogation violates the principles espoused in Miranda. Powell, 998 So.2d at 533. In affirming the decision of the appellate court, the Florida Supreme Court held Powell should have been clearly informed of his right to the presence of counsel during the custodial interrogation. Powell, 998 So.2d at 541. The supreme court further opined that it agreed with the appellate court that to advise a suspect that he has the right "to talk to a lawyer before answering any of our questions" constitutes a narrower and less functional warning than that required by Miranda. Powell, 998 So.2d at 542.
The defendant notes in his brief that the United States Supreme Court granted certiorari to review the Powell decision. As of this writing, the Supreme Court has since handed down its decision. The Supreme Court held that the advice to a suspect that he has "'the right to talk to a lawyer before answering any of [the law enforcement officers'] questions,' and that he can invoke this right 'at any time . . . during th[e] interview,'" satisfies Miranda. While this language was sufficient to satisfy Miranda, the Court did not decide what minimal language would be necessary to satisfy Miranda regarding the right to speak to an attorney. Thus, whether "you have the right to an attorney" satisfies Miranda under Powell is not clear. The Powell decision was limited to the facts of that Florida case, deciding only that the particular language on a Florida police department form regarding the right to an attorney satisfied Miranda. Moreover, the Powell Court did not resolve the federal circuit split, as discussed above, regarding what constitutes an adequate warning regarding the right to an attorney.
We note that the provision of the Louisiana Constitution regarding the rights of the accused provides no language expressly requiring counsel during questioning: "When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of . . . his right to the assistance of counsel and, if indigent, his right to court appointed counsel." La.Const. art. I, § 13. However, in Atwell, 398 F.2d at 510, the accused was informed that he was entitled to consult with an attorney, retained or appointed, "at anytime." The Fifth Circuit found that this warning did not comply with Miranda's directive that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. Only through such a warning, the court noted, is there ascertainable assurance that the accused was aware of this right. Atwell, 398 F. 2d at 510. In Bridgers, 431 F.3d at 860 n. 6, the Fifth Circuit noted that " Atwell remains binding precedent for cases on direct appeal in this Circuit." Thus, while arguably the Fifth Circuit has interpreted Miranda as providing the accused more protection than our state constitution regarding the advice of the right to the presence of counsel during custodial interrogation, and the Supreme Court in Powell has determined that the language, "you have the right to talk to a lawyer before answering any of our questions" and "you have the right to use any of these rights at any time you want during this interview" is sufficient to satisfy Miranda regarding the advice of the right to the presence of counsel during custodial interrogation, we need not decide at this time whether the advice in the instant case — "you have the right to an attorney" — complied with Miranda.
Even assuming the confession had been erroneously admitted into evidence, such admission would have constituted harmless error. The erroneous admission of a confession is a trial error that is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). Given the other trial evidence, the jury surely would have returned the same verdicts of guilt even if it had never heard the defendant's recorded confession to Major Johnson. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Tart, 93-0772 (La. 2/9/96), 672 So.2d 116, 129, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).
G.N. testified at trial that on several occasions over several months G.N. touched the defendant's penis, and the defendant touched his (G.N.'s) penis. On one occasion, the defendant licked G.N.'s penis. On another occasion, the defendant touched G.N.'s buttocks with his penis. J.N. testified at trial that over several years from the ages of six or seven years old to eleven years old, he would go to the defendant's house about every three months and that, every time he went there, he and the defendant engaged in sexual activity. J.N. stated that he and the defendant performed oral sex and anal sex on each other. He stated that he and the defendant had anal sex with each other about twenty times.
The defendant testified at trial and admitted that he had oral and anal sex with J.N. The defendant stated that he penetrated J.N. anally once, and J.N. penetrated him anally twice. According to the defendant, on the occasion when the defendant penetrated J.N. anally, J.N. backed into the defendant's penis because the defendant "really didn't want to do it." The defendant denied that J.N. was about eight years old when the defendant started having sex with him insisting, instead, that they did not engage in sexual activity until J.N. was twelve years old. The defendant denied the allegations regarding G.N. However, on cross-examination, the defendant testified that on one occasion at his house, G.N. had his penis out. The defendant moved his head toward G.N.'s penis, but never licked his penis. Also on cross-examination, the defendant testified about an incident when G.N. was at his house. As the defendant was walking to the closet, G.N. bumped the defendant from behind and touched the defendant's buttock with his (G.N.'s) penis. The defendant testified his pants were not down. On another occasion, the defendant and G.N. were in the kitchen when the defendant "barely touched" G.N.'s tongue with his tongue. They then ran to the sink and washed it off, and according to the defendant, there was nothing sexual about it.
The defendant's ex-wife testified at trial about her reaction when she first discovered that it was her nephew G.N. who had accused the defendant of wrongdoing:
A. And, then I called my brother and they came over. And, I was saying — I was telling him, I said, you know, somebody has accused Mark of doing something awful, and I can't imagine who would do this. And, my brother looked at me and said it was [G.N.] (crying). When he said it was [G.N], I knew it was true.
Q. Why?
A. [G.N.] would not — [G.N.] would never, never hurt me like that. He knew my family was my life. He would never, ever hurt me like that.
Q. Did you ever have any problems with [G.N.]?
A. No, no, not at all.
The State's evidence, excluding the recorded confession, clearly shows the defendant committed oral sexual battery, sexual battery, and molestation of a juvenile of G.N.; and aggravated rape, sexual battery, and oral sexual battery of J.N. The defendant admitted in his testimony at trial that he raped and had oral sex with J.N. Also, despite his self-serving and, oftentimes, implausible explanations regarding his actions with G.N., the defendant's testimony at trial corroborated G.N.'s testimony of sexual abuse. Viewing this evidence in a light most favorable to the prosecution, we find that any rational trier of fact, without the recorded confession, could have found beyond a reasonable doubt that the defendant was guilty of oral sexual battery, sexual battery, and molestation of a juvenile of G.N.; and aggravated rape, sexual battery, and oral sexual battery of J.N.
2003 La. Acts No. 795, § 1, amended La.R.S. 14:42A(4). Prior to the change in the law, it was aggravated rape when the victim was under the age of twelve years. Under the 2003 change in the law, it was aggravated rape when the victim was under the age of thirteen years. The 2003 change in the law became effective August 15, 2003. Thus, even assuming the veracity of the defendant's testimony that he did not rape J.N. until he was twelve years old, the defendant would still be guilty of aggravated rape.
Accordingly, we conclude that the admission into evidence of the defendant's recorded confession, even if erroneous, did not contribute to all six unanimous guilty verdicts herein. The assignment of error is without merit.