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11/24/86 State of Louisiana v. Michael Owen Perry

November 24, 1986

STATE OF LOUISIANA

v.

MICHAEL OWEN PERRY 1986.LA.2514 DATE DECIDED: NOVEMBER 24, 1986

PUBLIC DOMAIN CITE: STATE

v.

PERRY , 86 KA 0460 (LA. 11/24/86); 502 SO. 2D 543 APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, LOUISIANA, HONORABLE CECIL C. CUTRER, JUDGE, AD HOC.



Before the State can introduce what purports to be a confession, it must affirmatively show it was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451. In addition, if the statement was made during custodial interrogation, the State bears the burden of showing defendant received and waived his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Nelson, 459 So.2d 510 (La. 1984).

SUPREME COURT OF LOUISIANA

March 12, 1987, Rehearing Denied.

APPELLATE PANEL:

Cole, Justice.*

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COLE

Michael Owen Perry was indicted on five counts of first degree murder, in violation of La. R.S. 14:30. After deliberation during the guilt phase of his trial, the twelve person jury unanimously concluded defendant was guilty as charged on all five counts. Following the presentation of evidence during the sentencing portion of the trial, the jury unanimously recommended defendant be sentenced to death on each count. The jury found the same two aggravating circumstances existed for each crime: the offender knowingly created a risk of death or great bodily harm to more than one person; and the offense was committed in an especially heinous, atrocious, or cruel manner. The trial judge subsequently imposed the death sentence.

Defendant on appeal relies on six assignments of error. The first three assignments of error concern statements made by defendant to various persons which the trial court ruled were admissible. Assignment of Error Number One contends the trial court erred in allowing the introduction of a statement given to Deputy Herbert L. Durkes, Jr. on September 15, 1983, while defendant was incarcerated at the Jefferson Davis Parish jail. In Assignment of Error Number Two, defendant argues the trial court should not have permitted the introduction of the testimony of his aunt, Zula Lyon, regarding statements defendant made to her. Assignment of Error Number Three involves the introduction of testimony of Deputy Ervin Trahan as it relates to a statement made by defendant while being transported by Trahan and Sheriff Dallas Cormier to the Feliciana Forensic Facility for psychiatric evaluation.

Defendant in the Fourth Assignment of Error complains of the admission into evidence of the objects seized at the two crime scenes, arguing their admission violates his Fourth Amendment right to be protected from warrantless searches and seizures. In Assignment of Error Number Five, defendant alleges the trial court erred in allowing the State to introduce numerous color photographs of the five homicide victims. The final assignment of error contends the trial judge erred in failing to grant defendant's motion for a mistrial following a state witness's reference to defendant's theft of a radio.

We have added two issues not specifically addressed by counsel in brief to ensure full review, noting they were raised during oral argument. These issues are the finding of the sanity commission hearings and defendant's withdrawal of the dual plea of "not guilty and not guilty by reason of insanity."

We therefore treat in this opinion the six assignments of error, the additional issues, and we also review the sentence. Because we find no error in the trial court proceedings and find the conviction and sentence to be valid under the law, we affirm.

FACTS

The victims in this case were all related to defendant: two were his cousins, Randy Perry and Bryan LeBlanc; two were his parents, Grace and Chester Perry; and the fifth victim was defendant's two-year-old nephew, Anthony Bonin. They were shot in separate households located only two doors away from each other. The cousins died first in the residence located at 639 Louisiana Street in Lake Arthur, Louisiana. Defendant's parents and nephew died next, inside the Perry's home at 810 Seventh Street. The circumstantial evidence from which these facts were derived was presented by the prosecution through the testimony of a number of witnesses. Other information was obtained from a statement defendant gave to Deputy Herbert Durkes while defendant was incarcerated.

On July 17, 1983 defendant apparently entered the unlocked house on Louisiana Street in the early morning. He walked first to the living room couch where Randy Perry lay asleep. From a short distance of only a few feet, he fired into the left eye of his cousin. The accused then entered the bedroom where Bryan LeBlanc slept, and again fired the gun at the victim's head.

It appears defendant then walked across the yard to his parents' home at 810 Seventh Street and broke into the house. He listened to music for a while, awaiting his parents' arrival home from an out of town trip. His parents, on their return home, stopped to pick up the two-year-old, Anthony Bonin, whom they cared for when his father worked offshore.

At about the time the parents arrived home, several people in the vicinity heard loud noises or gunshots. In the statement defendant gave to Deputy Durkes admitting to the five murders, defendant indicated his father came through the door first, followed by the child and the mother. According to this statement, he shot his father first, then his mother, and then the child. There appeared to be some struggle with his father, whose body was found crouching behind the television in the living room. Because his first attempt did not kill either of his parents, he shot both of them a second time in the head. Not being sure the child was dead, he shot him a second time also. After dragging his mother's body away from the door so he could close it, he took his father's billfold containing $3,000 cash, and a strongbox belonging to his mother. He left the scene in his father's car.

The caretaker of the 639 Louisiana Street residence, Ernest Ashford, discovered the bodies of Randy Perry and Bryan LeBlanc shortly after 5:00 P.M. on July 19, 1983. The caretaker was the son-in-law of the owner of the house and the stepfather of Bryan LeBlanc. Ashford had a key to the house, and had entered the house out of concern for the diabetic Perry. Ashford notified police, who later entered the residence of Grace and Chester Perry and discovered the bodies of the other three victims.

Defendant became a suspect because of the bad relationship he had with his parents. Defendant lived in a trailer behind their home and was not allowed to enter their home without their permission. Zula Lyon, defendant's aunt, testified in the guilt phase of the trial that defendant's motive for the killings was to obtain insurance proceeds from his parents' policies. Another possible motive was the fact defendant's parents had taken him to a mental hospital in Galveston for examination when he was sixteen and had him committed to the Central State Hospital at Pineville two years later. According to testimony, he was infuriated at his parents for committing him and had consequently threatened to kill them. Interrogated as to why he killed the victims, Deputy Durkes gave this account of defendant's statement:

Why did you kill all those people? The boys threw me out of my grandmother's house, stole money from me all the time, and harassed me constantly. My mother and father wouldn't leave me alone. They made me live in that little trailer behind their house by all those stinking dog pens. They took all my money all the time, wouldn't let me in their house when I wanted. I just couldn't take it anymore.

I asked him why he killed the child. The kid was evil some sort of devil, witch of some sort. I asked -- I'm sorry. I said that the child was too young to do him any harm or even talk, so why kill him? He was a very smart kid, he said, too smart for his age. I had to make sure he was dead.

Defendant arrived in Washington, D.C. on July 18, 1983, the day after the murders were committed. He checked into the Annex Hotel. While there, he paid rent in advance for his room, giving the clerk five one hundred dollar bills. He also bought numerous items from a television store, which were loaded by a clerk into a car matching the description of that owned by his father. On July 31, 1983 defendant had an encounter with another guest at the Annex Hotel which led to the police being called. An officer ran a routine check on defendant and learned he was wanted in Louisiana for five counts of homicide. At the time of his arrest he had in his possession $1,100 cash and a hotel key. Following his arrest, the Washington police obtained a search warrant for his hotel room. Among the evidence recovered was one of the recently purchased television sets, with the names of the five victims written on the side. The vehicle driven by Chester and Grace Perry on their trip was recovered approximately one week later in a Washington, D.C. police impoundment lot where it had been towed for being parked in a no parking zone.

Following his transport back to Louisiana defendant was indicted on five counts of first degree murder. Defendant initially entered the dual plea of "not guilty and not guilty by reason of insanity" to each charge. A sanity hearing was held to determine his competency to stand trial, and the judge ordered he be sent to Feliciana Forensic Facility for further psychiatric evaluation. Subsequent to his return from this evaluation, another sanity hearing was held. At the close of this hearing defendant was allowed to withdraw his dual plea and enter the single plea of "not guilty," against the advice of counsel.

The issue of defendant's sanity is material to assignment of errors one and three, and is also relevant in the determination of whether or not defendant should have been permitted to withdraw the dual plea initially entered and replace it with a plea of "not guilty." Even though not included in the assignment of errors, we address the finding of the sanity commission hearings and the withdrawal of the dual plea because of their overall importance and effect on other assigned errors, and because we deem it imperative to afford a defendant assessed the death penalty a review of all issues raised in his behalf regardless of whether formally asserted.

DETERMINATION OF COMPETENCY

Defendant was the subject of two sanity commission hearings, the first on September 26, 1983 and the second on March 1, 1985. The first commission was composed of Dr. Louis E. Shirley, Jr., a general practitioner with some capacity to treat psychiatric disorders, and Dr. Young Hee Kang, a general practitioner who completed a residency in psychiatry. After brief interviews with the defendant in the parish jail on September 26, 1983, both were of the opinion he needed further psychiatric evaluation. They summarized their findings:

We find that he has a long history of paranoid schizophrenia and at this time is not in complete contact with reality and may be dangerous to himself and others. We were not able to ascertain his mental state at the time of the alleged offense(s). We feel that he needs complete psychiatric evaluation and therapy at this time.

As a result of this hearing the defendant was sent to the Feliciana Forensic Facility, for evaluation and treatment. The record does not reflect when the defendant was returned to Jefferson Davis Parish, but defendant was apparently returned in March of 1984.

Upon motion of the State, the second sanity commission was appointed. This commission was composed of the same two physicians who were on the first commission, plus an additional physician who specializes in psychiatry, Dr. Aretta J. Rathmell.

At this second commission hearing, the three physicians unanimously agreed defendant was mentally competent and could assist his counsel in his defense. The trial court agreed, finding the evidence clear, and ruled accordingly.

It is fundamental to our adversary system of justice that a defendant who lacks the capacity to understand the proceedings against him or to assist counsel in preparing a defense may not be subjected to trial. La. C.Cr.P. art. 641; Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). This Court in State v. Bennett, 345 So.2d 1129 (La. 1977), set forth the appropriate considerations which a trial judge must use in the determination of competency:

Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused's ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives: whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Bennett, supra, at 1138.

It appears the examining physicians and court abided by these criteria. Dr. Rathmell, the psychiatrist, and the first of the three doctors on the commission to testify at the second sanity commission hearing, in particular paid attention to the criteria. She read from her report, which followed almost verbatim the factors set forth in Bennett, and concluded defendant was presently sane and able to proceed with trial. Her opinion was based on two ninety minute interviews with defendant, and evaluation of medical reports from the two State hospitals to which defendant had been committed. Some of these reports came from Feliciana Forensic Facility, and were the result of months of observation. She noted the records compiled by the psychiatrists at Central State Hospital at Pineville diagnosed the accused as having a paranoid illness, which she indicated is more of a character trait or state of mind than is the more serious schizophrenic illness. She characterized schizophrenia as a more incapacitating thinking disorder. She believed defendant has periodically had severe psychiatric problems, but agreed with the earlier psychiatric diagnoses from Central State Hospital. She found at the time of defendant's examination by her he was in remission of a paranoid illness. Though on cross-examination Dr. Rathmell admitted other hospital records characterized the defendant as having paranoid schizophrenia, she noted those words always appeared with the signature of non-medical personnel. Dr. Rathmell noted no psychiatrist had ever documented the diagnosis of acute paranoid schizophrenia.

Dr. Shirley did not include in his opinion of defendant's mental condition as many of the criteria from Bennett as did Dr. Rathmell. However, he still addressed several of them in his testimony during examination. Dr. Shirley was firm in his conclusion the defendant seemed to be able to assist his counsel at trial, to be aware of the charges against him, and to be able to help in his defense. Dr. Kang, like Dr. Shirley, also did not include all of the criteria, but was of the opinion he could assist his counsel, understand the trial he was facing, and understand the consequences of possible conviction.

It should be noted additional support for the finding of competency is evident in the testimony of Dr. Theresa Jiminez, who testified during the penalty phase of defendant's trial. Dr. Jiminez is a certified psychiatrist, and was employed as clinical director at Feliciana Forensic Facility during the time defendant was being evaluated there under court order. Her duties included determining whether or not patients were mentally ill. She testified there are two types of mental illnesses: schizophrenia, which is a major mental illness, and those illnesses that constitute personality disorders. She classified defendant as having a personality disorder, of an anti-social type. She also indicated defendant is smart enough to act in a crazy manner if he feels he needs to do so. Further, she stated if a person is suffering acutely from a major mental illness, as opposed to a personality disorder, he would not have the capacity to plan and reason out his acts as was necessary for the crimes involved here. He would not be able to think logically, lay in wait for someone to come home, plan a murder, hide evidence, or know to flee from town.

A comparison of the length of examinations and credentials of Drs. Rathmell and Jiminez, as opposed to Drs. Shirley and Kang, is significant in weighing the opinions of each as to credibility. Drs. Shirley and Kang had both earlier diagnosed defendant as being paranoid schizophrenic. Dr. Rathmell spent approximately three times as long with defendant as did Drs. Shirley and Kang; Dr. Jiminez had the benefit of months of her own personal observation and reports of other staffers while the accused was a patient from October 1983 to March 1984. Both Drs. Rathmell and Jiminez are psychiatrists; neither Dr. Shirley or Dr. Kang is a psychiatrist. Dr. Shirley himself, during his testimony, indicated a willingness to defer to the greater experience and expertise of Dr. Rathmell.

The defendant has the burden of establishing incapacity, because Louisiana law presumes the defendant is sane and responsible for his actions. La. R.S. 15:432. The defense must prove by a clear preponderance of the evidence the defendant is incompetent to stand trial as a result of a mental disease or defect. La. C.Cr.P. art. 641; State v. Machon, 410 So.2d 1065 (La. 1982). While a court is permitted to receive the aid of expert medical testimony on the issue, the ultimate decision of competency is the court's alone. La. C.Cr.P. art. 647; State v. Rogers, 419 So.2d 840 (La. 1982). A trial court's determination of the mental capacity of a defendant is entitled to great weight, and his ruling will not be disturbed in the absence of manifest error. State v. Morris, 340 So.2d 195 (La. 1976).

The weight of the evidence supports the trial court's determination of competency. The expert witnesses in the sanity commission hearing at which competency was found were examined thoroughly by both prosecution and defense. The three examining physicians were unanimous in their conclusion the defendant was able to proceed with trial. It is true there were some diagnoses of defendant as having paranoid schizophrenia, made by non-psychiatrists. However, the weight of the evidence, in terms of both the duration of the interviews and expertise, supports the finding of either a personality disorder or paranoid illness, as opposed to the more disabling thinking disorder of schizophrenia. In light of this evaluation of expert testimony, we cannot find the trial court's determination of defendant's competency to be clearly erroneous.

WITHDRAWAL OF DUAL PLEA

The issue of withdrawal by defendant of the dual plea was considered by the trial judge immediately following the sanity hearing. Though the change of plea was not included in the assignment of errors, we address this issue because of its importance in assuring complete review and because it was raised during oral argument.

During the interval between the appointment of the second sanity commission and the hearing on March 1, 1985, the trial court received correspondence from the defendant. In this correspondence the defendant informed the court of his desire to withdraw his dual plea of "not guilty and not guilty by reason of insanity" and enter the single plea of "not guilty." The attorneys were notified of defendant's wish and of the court's intention to consider this request if the defendant was found mentally competent at the sanity hearing.

Following the finding of competency, the defendant was informed the court was aware of his desire to withdraw his dual plea on all five counts and replace it with the single plea. He told the court emphatically he wanted to change the plea. The trial judge questioned the defendant about his education, learning he had completed 13 college hours of credit in general studies. The judge clarified and explained thoroughly what the plea of "not guilty and not guilty by reason of insanity" meant. Defendant related he and his attorneys had spoken at length about the change in plea, and in response to the judge's question, he again expressed his desire to withdraw the dual plea. Out of an abundance of caution, the judge called a recess for the express purpose of providing defendant a final consultation with his attorneys, and specifically instructed defendant to listen to his attorneys. After a forty minute recess, the defendant had not changed his mind and still wanted to change his plea. Over the objection of his counsel, the court permitted defendant to withdraw his dual plea and enter a plea of "not guilty," relying on the holding of State v. Clark, 305 So.2d 457 (La. 1974). The relevant portion of Clark, supra, provides as follows:

This Court cannot approve the trial court's action in requiring the defendant to maintain such an untenable position when he desires to withdraw the insanity portion of the dual plea unless there is some overriding rationale for refusing a defense request to withdraw such a plea. The reason for La.C.Cr.P. art. 561's specific time limits within which a defendant may of right change a simple "not guilty" plea to the dual insanity plea is to give the State adequate notice of defendant's intention to advance the insanity defense and adequate time to prepare in the face of such a defense. See Official Revision Comment to La.C.Cr.P. art. 561. No such rationale is applicable in the reverse situation. When defendant seeks to withdraw the insanity portion of a dual plea and stand on a simple "not guilty" plea, no prejudice to the prosecution results. However, denial of a request for permission to withdraw the dual plea results in substantial prejudice to the defendant in a criminal prosecution. The defendant may withdraw the dual plea and substitute the single plea of "not guilty" at any time prior to the presentment of the indictment and defendant's responsive plea to the jury. Clark, at 463.

It is true the instant case is distinguishable from Clark, as it does not appear in Clark the plea was withdrawn over counsel's objection. However, this Court has recently dealt with this specific issue in the capital case of State v. Lowenfield, 495 So.2d 1245 (La. 1985), where the accused also wished to withdraw his plea of insanity against his attorney's advice. The Court stated the following:

It appears beyond argument that when a competent defendant wishes to plead not guilty rather than not guilty by reason of insanity, and clearly understands the consequences of his choice, then the counsel must acquiesce to the wishes of his competent client. The court had no choice but to allow the defendant to withdraw his pleas and in this we find no error. . . . Lowenfield, Slip Op. p. 11-12.

We consequently find the trial court ruling permitting defendant to withdraw his plea is correct.

ASSIGNMENT OF ERROR NO. ONE

Defendant's first assignment of error challenges the admissibility of a statement he made on September 15, 1983 to Herbert L. Durkes, Jr., a jailer at the Jefferson Davis Parish jail during the time defendant was incarcerated there. Defendant argues primarily his mental state at that time prevented him from giving a free and voluntary statement.

In the early morning hours of September 15, 1983, defendant informed Durkes he wanted to confess. Durkes told defendant he would call Detective Ervin Trahan or Chief Deputy Ted Gary to hear his confession, but defendant said he did not want to talk to them because they did not want to listen to him. Durkes therefore secured the presence of Robert Lee, the other jailer on duty, and of Daniel Peer, a trustee. Peer stood out of defendant's line of vision, along the wall beside the door to defendant's cell. Durkes and Lee squatted down so they could listen at the opening in the steel cell door through which food is placed into the cell. From that position they could see defendant's face and shoulders. Durkes read defendant his Miranda rights and asked if he understood them, to which defendant responded yes. He asked defendant if he wanted a lawyer present and defendant said he did not. Durkes listened as defendant confessed and subsequently went to his desk and wrote down the account. Lee and Peer read the written statement and agreed it matched what defendant had said. Durkes took the handwritten statement to a typist who then typed it.

At both the hearing on the motion to suppress and at trial, Durkes indicated he did not promise anything to defendant, did not threaten or intimidate him, coerce him or place any physical or mental duress upon him. Durkes described defendant as alert during the giving of the statement and stated he had defendant's full attention. Defendant made eye contact with Durkes and was responsive.

Furthermore, the record clearly demonstrates Durkes read defendant his Miranda rights and defendant does not contend otherwise. Rather, defendant's attack on the admission of the confession focuses upon whether the statement was freely and voluntarily made, considering his mental condition at the time he gave it. He relies heavily on his having been diagnosed as paranoid schizophrenic a short time before giving the statement and was soon to be sent to Feliciana Forensic Facility. In order to assess the merit of this argument, it is necessary to review the testimony from the September 26, 1983 sanity commission hearing held shortly after the statement was given, as well as from the August 21, 1985 hearing on the motion to suppress where the statement was ruled admissible.

As earlier indicated, on September 26, 1983, Drs. Shirley and Kang examined defendant and testified at a sanity hearing held that same day. They concluded he was paranoid schizophrenic, and we have previously disregarded this finding in favor of the diagnoses provided by the more experienced psychiatrists. However, while defendant contends the characterization of paranoid schizophrenia by Drs. Shirley and Kang should result in his ...


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