State v. Petterway

The Grand Jury of Bossier Parish returned a true bill against defendant Larry Don Petterway charging him with the aggravated rape of a nine year old boy in violation of R.S. 14:42. The trial court denied defendant’s motion to suppress incul-patory statements. Defendant then entered a guilty plea to the lesser included charge of attempted aggravated rape reserving the right to appeal the adverse ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The trial judge sentenced defendant to forty years at hard labor.

Officers from the Shreveport Police Department and the Bossier Parish Sheriff’s Department arrested defendant at his Shreveport apartment. The police read defendant the Miranda rights and asked him whether he understood those rights. He indicated that he did and signed a waiver of rights form. Deputy Alton L. Luce of the Bossier Parish Sheriff’s Department transported defendant to the Bossier Parish Sheriff’s Office in Benton, Louisiana. Defendant made two inculpatory statements: one oral on the way to Benton and one recorded after reaching Benton. Defendant contends that en route to Benton he was threatened and received promises which induced him to make the inculpatory statements he now seeks to have suppressed.

At the hearing on the motion to suppress, defendant and Deputy Luce testified to widely divergent versions of what transpired during the trip to Benton. According to defendant, Deputy Luce promised to have the aggravated rape charge reduced to contributing to the delinquency of a minor in return for a statement. Defendant also stated that the deputy told him that the penalty for aggravated rape was the electric chair. Furthermore, defendant alleged that Deputy Luce told him that the other prisoners would attack him nightly.

For his part, Deputy Luce categorically denied that he had promised to have the charge reduced or that he had informed defendant that the electric chair awaited him if convicted of aggravated rape. In response to defendant’s allegation about the threat of nightly attacks, Deputy Luce denied making such a threat but admitted that he told defendant “jail was not a pleasant place to be.” The deputy also said that he told defendant that “things would go easier for him” if he cooperated.

Only Deputy Luce and defendant were present at the time that the above conversation took place during which defendant contends that promises and threats were made. Therefore, the trial judge had to decide the matter based upon his assessment of the credibility of the witnesses.

Defendant stated that he did not pay attention to the reading of the Miranda rights, but did admit that the signature on the waiver card was his. This defendant is a high school graduate. He also completed a home nursing course. We are not here dealing with an illiterate individual. The defendant had telephoned and talked with his parents before leaving his apartment for the ride to Benton with Deputy Luce. Finally, defendant admitted that he had been arrested more than once before and had received Miranda rights at those times although he protested that he had not paid attention then either.

Regarding the alleged promise of a reduced charge, defendant first testified that no promises about the charge had been made, but he then changed his testimony to state that Deputy Luce had promised the reduced charge in return for a statement. Defendant told the judge that no rape had taken place but that he had included in the statement whatever Deputy Luce informed him the victim’s story had been.

Deputy Thiebaud, also of the Bossier Parish Sheriff’s Department, confirmed that defendant had been given the Miranda rights while still at his apartment and that defendant signed the waiver card at that time. Deputy Thiebaud described the apartment as quite small and said that he could hear virtually everything that was said even while he was executing a search warrant in another room. According to this witness, no threats or promises were made at the apartment and defendant does not contend otherwise.

Before the state can introduce an inculpatory statement made in police custody, it bears the heavy burden of establishing that defendant received Miranda warnings and that the statement was freely and voluntarily made and not the product of promises, threats or duress. C.Cr.P. art. 703; R.S. 15:451; State v. Bell, 395 So.2d 805 (La.1981). Once a defendant alleges specific instances of police misconduct in reference to the statement, it is incumbent upon the state to rebut specifically each such instance. State v. Dison, 396 So.2d 1254 (La.1981), State v. Franklin, 381 So.2d 826 (La.1980).

Our inquiry focuses entirely upon the time that defendant and Deputy Luce were alone together because defendant alleges the misconduct transpired during this period of time. Defendant suggests that in such a one on one situation the state cannot meet its burden of showing that the statement is free and voluntary because there are no witnesses to confirm the deputy’s version of events.

In denying the motion to suppress, the trial court stressed defendant’s education and the fact that he had again been given the Miranda warnings and signed a second waiver of rights form in Benton before making the recorded statement. On appellate review, the trial judge’s determination of credibility is accorded great weight and will not be disturbed unless not supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981); State v. Manning, 380 So.2d 46 (La.1980).

We note that defendant did receive Miranda warnings and did sign a waiver of rights form on two separate occasions. We are not impressed by defendant’s allegation that Deputy Luce promised to have the charge reduced to contributing to the delinquency of a minor when our review of the record indicates that initially defendant testified that he had received no promises regarding a reduced charge.

We are concerned, however, by Deputy Luce’s admitted statement to defendant that things would go easier for him if he cooperated. Deputy Luce explained that he meant that defendant should give a statement and tell the truth. Recently we have considered two cases in which similar “promises” were allegedly made by the authorities. In State v. Huff, 392 So.2d 1046 (La.1981), that defendant contended that the sheriff had told him that he might avoid federal prison or Angola if he cooperated. We found that the sheriff denied making such a promise and testified that he had specifically told Huff that he couldn’t promise anything. Considering the evidence, we held that Huff’s confession was admissible.

In State v. Dison, supra, the sheriff admitted telling the defendant that “in the past, anybody that tried to help themselves, usually got help.” Dison, 396 So.2d at 1258. A deputy had also told that defendant that if he cooperated, the deputy would do what he could to help. Both officers testified, however, that they had told defendant that they could promise him nothing. Based upon the totality of the circumstances, we held that Dison’s confession was admissible.

In the instant case, Deputy Luce did not specifically admonish defendant that he could make no promises. However, he did not make a specific promise to defendant or say anything which could be construed to be a promise. Deputy Luce did not have repeated interviews with defendant before obtaining the statements. Defendant’s will was not overborne by exposure to numerous policemen. Instead defendant made his statement during his first exposure to a single policeman a very short time after his arrest. Deputy Luce’s comment to the effect that defendant would be better off if he cooperated is very much like the statement in Dison that if the accused cooperated the deputy would do what he could to help. Statements of this type, rather than being promises or inducements designed to extract a confession, are more likely musings not much beyond what this defendant might well have concluded for himself.

There is an additional issue which we choose to address although not raised by the parties, that is, whether the seven member panel assigned to hear this case, comprised of four Supreme Court justices and three Court of Appeal judges sitting as Justices ad hoc, has the authority to hear and decide this case, and further whether such assignments are constitutional.

Legislative and Constitutional changes in 1980 place jurisdiction for appeals in most criminal cases in the Courts of Appeal of this state where formerly it had been in this Court. The transfer of criminal appellate jurisdiction becomes effective on July 1, 1982. In an effort to familiarize the Court of Appeal judges with criminal law and procedure and the internal processes of this Court in handling appeals in criminal cases, among other reasons, this Court adopted a procedure whereby three Court of Appeal judges would be assigned to sit with four Supreme Court justices to hear and decide criminal eases.

The authority of the Louisiana Supreme Court to make such assignments and the authority of these panels to hear and decide cases was attacked in State v. Bell, 395 So.2d 805 (La.1981), and State v. Claibon, 395 So.2d 770 (La.1981), in a “Motion to Vacate Appointments.” In response to that motion, the Court rendered a unanimous opinion authored by Chief Justice Dixon which held that there was no merit to the motion for the reason that Article 5, § 5(A) of the Louisiana Constitution of 1974 provides, without qualification, that the Supreme Court “may assign a sitting or retired judge to any court” and that “the Court’s power to assign judges to assist courts other than their own within the judicial branch in furtherance of the administration of justice is explicit and unfettered.”

It has been contended that Bell and Claibon only addressed the issue of whether judges could be assigned to this Court without their consent. Our opinion in Bell and Claibon was not so limited. Rather, it was a holding by this Court that the assignment of three Court of Appeal judges to sit with four Supreme Court justices on criminal cases was in furtherance of the administration of justice, authorized by the Louisiana Constitution of 1974 and not in violation of it.

It has also been contended that the assignment of the Court of Appeal judges to this Court to serve on these seven member panels (two different panels, each with four Supreme Court justices and three Court of Appeal judges, justices ad hoc, hear one half the criminal cases orally argued each court cycle) violates the Equal Protection Clause and Due Process Clause of both the Louisiana Constitution (Article 1, § 5 and Article 1 §§ 2 and 22, respectively) and the United States Constitution (Amendment 14). Although this contention was not expressly addressed in the Bell/Claibon opinion it has been considered by this Court and found to be without merit.

There have been no reasons cited for the belief that the hearing and deciding of criminal cases by these panels violates the above Constitutional provisions except for the speculation that defendants with equally meritorious, or nonmeritorious, appeals might fare better or worse depending upon the identities of the justices and judges who compose the respective panels; and that different rulings on identical legal issues might be forthcoming from different panels. In contemplation of the possibility of this latter problem, inconsistent opinions coming from different panels, it is a part of the established procedure that the applications for rehearing in all of these criminal cases are considered by the seven permanent members of the Court, rather than the respective panels which first entertain the appeal.

Furthermore, since we are not dealing with a suspect class or a fundamental right (McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894) differences in the appellate process are not prohibited where they have some relation to a rational policy of criminal appeals and do not amount to invidious discrimination. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Under the present scheme of assigning three Court of Appeal judges to the seven member panels, with different panels hearing and deciding one half of the criminal cases argued before the Court each Court cycle, it is possible that a given defendant’s case might be viewed differently by one or the other of two differently composed panels. However, as stated above, all rehearing applications are considered by the regular seven member Court.

Additionally, it should be noted that the docketing of all cases is by a random process.

The reasons for and the institution of this temporary system (from December 1980 until some time in 1982 as presently contemplated) are consistent with and in furtherance of the administration of justice. More particularly we have not had called to our attention, nor do we find any plausible legal reasons or jurisprudential support in the federal jurisprudence or otherwise for the proposition that this system as adopted or implemented is constitutionally deficient on equal protection grounds.

Furthermore federal due process does not require a state in criminal cases or otherwise to provide an appellate system. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973). Due process only requires that such procedural rights, including appeal, as are instituted by law, be indiscriminately afforded each person attempting to exercise same. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). All criminal defendants entitled by law to an appeal to the Louisiana Supreme Court are being afforded that right, albeit under a temporarily changed system as described more fully hereinabove, and to a Supreme Court the composition of which has been effected by the Court’s exercising its constitutional authority, Art. 5, § 5(A) of the Louisiana Constitution of 1974, to assign sitting judges to the Louisiana Supreme Court.

Decree

For the foregoing reasons, we find that the trial judge ruled correctly when he denied the motion to suppress. Consequently, defendant’s conviction and sentence are affirmed.

AFFIRMED.

KLIEBERT, J., ad hoc, concurs and assigns reasons.

DENNIS, J., joins in the opinion insofar as it upholds the jurisdiction of this Court but respectfully dissents from the decision on the merits, being of the opinion that the inculpatory statement was not free and voluntary.

REDMANN, J. pro tem., dissents with reasons.

Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit, and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lem-mon.