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State v. Hutchinson

Court of Appeals of Louisiana, Third Circuit

December 12, 2018

STATE OF LOUISIANA
v.
HARLOW HUTCHINSON

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 59587 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

          Edward K. Bauman Louisiana Appellate Project Attorney for Appellant/Defendant: Harlow Hutchinson

          Celeste White Assistant District Attorney Parish of Vermilion State of Louisiana Attorney for Appellee: State of Louisiana

          Harlow Hutchinson Pro se Dixon Correctional Institute

          Court composed of Ulyssess Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Marc T. Amy, Judges.

          SYLVIA R. COOKS JUDGE

         Harlow Hutchinson (Defendant) enlisted the help of his long-time friend, Troy Landry (Landry), to kill his wife, Jennifer Hutchinson (Jennifer). Because Landry did not follow through on the plan but, instead, alerted law enforcement authorities, no harm came to Jennifer. On December 9, 2015, Defendant was charged by bill of information with one count of solicitation for murder, a violation of La.R.S. 14:28.1. On January 24, 2018, a jury found Defendant guilty of soliciting the murder of his wife.

         On February 8, 2018, Defendant was sentenced to seventeen years at hard labor. Defendant appeals his conviction and sentence alleging four assignments of error presented by his appellate counsel: 1) there was insufficient evidence to support Defendant's conviction, (2) the trial court erred in denying a motion to reconsider sentence, (3) trial counsel was ineffective for failing to request a mistrial at a different point of trial, and (4) Defendant's sentence is constitutionally excessive. Additionally, Defendant alleges nine pro se assignments of error, some of which present duplicative arguments.

         Lieutenant David Hardy (Hardy), a twenty-eight-year veteran of the Abbeville Police Department, testified he and Defendant went to school together and their children attended school together. Hardy stated he received an anonymous call on October 3, 2015, from someone who claimed "a friend" wanted him to murder his wife. On October 7, 2015, Hardy received another call from the same individual and this time the two agreed to meet in Abbeville at a public park. He was accompanied by Sergeant Ryan Boutte (Boutte) also with the Abbeville Police Department. Hardy recognized Landry and introduced him to Boutte. He and Boutte engaged in an extensive conversation with Landry which was recorded by Hardy's body camera. Hardy asked Landry to identify the "friend" who wanted to kill his wife but Landry responded he wanted to speak first. He explained that he had been friends with this person since they were seven years old and that he was in the friend's wedding more than twenty years prior. He asked if there was any way to give his friend a chance to back out of his plan. Landry then presented a recorded conversation with Defendant. He explained to the officers that he only had about an hour of sleep the night before the recording and for the first time in eight years he drank alcohol before speaking with Defendant. The officers had problems hearing the video, so they plugged Landry's phone into the officer's radio. After listening to the recording, Landry told the officers his friend had previously discussed using chloroform on his wife. He further stated Defendant told him that the reason he wanted to "get rid" of his wife was "some Russian girl [he met] online." Landry explained that Defendant was coming by to see him two or three times a week to discuss his plan to have Landry kill his wife. Eventually, Landry discloses to Hardy the identity of his "friend" as Defendant.

         Landry explained he was initially approached by Defendant six months earlier, but he convinced him to turn away from his plan. But, according to Landry, Defendant repeatedly discussed the plan and insisted he wanted to follow through. Hardy told Landry he would contact the State Police and get back in touch with him. He also informed Landry that Defendant would have to pay something up-front to show intent. Landry suggested the idea of telling Defendant he could not kill Jennifer, but he knew someone who would. Hardy told Landry to continue playing along and record whatever conversations he could with Defendant. Landry asked Hardy if he was in any trouble. Hardy assured him he was not because he was doing the right thing.

         Landry later emailed Hardy a copy of the recorded conversation between he and Defendant. After receiving the email from Landry, Hardy testified he contacted Sergeant Brad Guidroz (Guidroz) with the Louisiana State Police. Hardy stated Landry asserted the cellphone video of his conversation with Defendant occurred a few days before he contacted law enforcement. The cellphone video was played for the jury.

         The recorded conversation between Landry and Defendant begins with them discussing that Landry is too old to be drinking heavily and then they discuss trees growing near Landry's house. Landry next acknowledges that Defendant wanted him to shoot his wife with a crossbow and then injure him. Defendant signifies his agreement. Next, they debate where Landry should shoot Defendant, with Defendant stating "[a]fter you shoot her and I know she's, like, ninety percent dead, then I can f*****g walk up to you and then let you, from me to you, let you put one in my g*****n shoulder." The two men then debate the benefits and disadvantages of using a crossbow versus a longbow. They also discuss, in detail, how to make the scene look more believable regarding Defendant's injury after his wife is lying on the ground. Defendant suggests the easiest solution would be to find a cheap crossbow at a flea market. Landry suggests they might be able to get one in Lafayette, and Defendant responds "[f]ine, let's go there this weekend."

         Hardy testified that after he called the Louisiana State Police, they took charge of the investigation under the leadership of investigator Paul Perry (Perry), a thirty-six-year veteran officer and investigator for roughly twelve of those years. The Abbeville Police Department assisted in the ongoing investigation. Hardy further testified that on the day of Defendant's arrest Boutte downloaded Landry's cellphone which contained numerous text messages between Landry and Defendant.

         On cross-examination, Hardy testified Landry claimed his conversations with Defendant were ongoing for about six months, but he did not mention it to anyone other than his wife. He also acknowledged he never alerted Jennifer to the fact that the authorities suspected her husband was trying to have her killed.

         Boutte, a law enforcement officer for sixteen years, with eight of those years spent as a detective, "process[ed]" Landry's phone, which involved creating images of the text messages, photographs, etc. stored on the phone. He reviewed a few text messages exchanged between Defendant and Landry on the same day that Landry met with he and Hardy. These included a discussion of Landry looking for a crossbow and sending a Craigslist.com advertisement for a crossbow located in Jeanerette. Defendant expresses in the texts that he was unsure the crossbow would be strong enough.

         At 10:06 a.m. on October 9, 2015, Landry texted Defendant that his friend in "general rent"[1] had another buyer with cash in hand and gave Landry until noon to "give him the money." At 10:11 a.m. Defendant responded "[y]es I'm getting there. Just moving slow. My back and neck are killing me."

         On cross-examination, Boutte indicated the meeting with Landry occurred at Comeaux Park, not Godchaux Park as Hardy stated. He also acknowledged that none of the text messages explicitly talks about killing anyone.

         Perry noted that the investigation team "wanted to come up with something to further this," and that Hardy had pulled up the Craigslist advertisement for the crossbow. Perry explained they had Landry send the link to Defendant suggesting the need to discuss the matter in person. He also noted Defendant and Landry discussed using a crossbow as a murder weapon before law enforcement began the investigation. Perry further explained the meaning of Defendant's text message that the crossbow would "easily take a rabbit or squirrel[.]" He testified Landry informed the investigators that "rabbit or squirrel" was a reference to Jennifer Hutchinson. Perry further explained the investigative team scheduled a meeting between Defendant and Landry on October 7, 2015, to discuss the murder for hire. That meeting was video-recorded. Perry explained that the investigation team had a surveillance van parked across from Landry's house and that Guidroz took photographs during the meeting. Landry asked Defendant if he still wanted Landry to kill Jennifer because "it's getting close." Defendant told Landry to turn off his phone, then it is silent for a while. Defendant admonished Landry for sending the link of the crossbow to him, stating "[t]hey can trace that." Landry then asked "[w]hen do you want to do this," to which Defendant responded "soon." Defendant stated he had changed his mind about the plan suggesting instead that they should go back to the original plan with him being at the gym when the shooting happens, so it would just look like a robbery. When Landry asked Defendant where he would hide money for Landry to disappear, Defendant told him he would hide $500 in a shoe on the steps by the door so that Landry did not have to take a chance with Defendant's dog Bella, which Landry notes is a 180-pound dog. In response to Landry asking what he should use to clean the arrow after the shooting, Defendant tells him to use "acetone, rubbing alcohol, I don't care." Defendant next tells Landry to change the head of the arrow to a regular tip, not a "big, square tip."

         Landry then turned the conversation to how Defendant would "take care of" him after the job. Defendant told Landry he would deposit enough money in an account in Defendant's name to pay off Landry's home mortgage. Landry would be allowed to withdraw money from that account in smaller increments because a large mortgage payoff in a lump sum might arouse suspicion.

         The two then discussed Jennifer's routine of returning from church around 8:30 p.m., and thus Landry could hide and ambush her while it was dark. Landry asked what he should do if the crossbow did not kill her on the first shot. Defendant responded "[y]ou know the heart is here, hit her under her left t*t." Defendant told Landry to make sure he was wearing gloves he would provide. He also told him to recover the arrow and place it in a plastic bag to avoid getting Landry's DNA, his dog's hair, or anything else on the arrow that could be traced back to Landry. They returned to discussing the purchase of the crossbow. Defendant again asked how much the crossbow would cost and Landry replied "[y]ou gave me $140, so you're looking at about another $150 for the crossbow." Landry noted that "tomorrow is Thursday, I think the guy's willing to hold it until Friday." Defendant then answers a phone call and engages in a discussion about purchasing a part for his Jeep.

         Defendant next tells Landry he would funnel $550 a month to him to pay his house note for six-to-eight months, then he would pay off the mortgage in cash. Landry told Defendant he needed to know when Defendant wanted the attack to occur because he could visit a friend near Kirbyville, Texas to establish an alibi. When Landry noted that he was unsure whether Defendant wanted to wait another month for Landry to be able to use a doctor's visit as an alibi, Defendant responded "no" because he "was ready to f*****g strangle her myself, now." At the twenty-minute mark on the tape Defendant states "[y]ou know, they define stress as the dire need to choke the living s**t out of some a**hole who desperately deserves it," and "I'm fighting stress f******g drastically."

         Defendant told Landry he wanted to make sure Landry had a rock-solid alibi to insure "no heat comes back to [him]." He asked Landry if his friend would say that he was with him a couple of hours before he actually arrived. Landry responded that he would lead his friend to believe he would be covering for him while he was having an affair. Landry explained to Defendant that he needed time to prepare himself because he could not just wake up and say "I'm gonna go kill Jennifer." Defendant responded, "tomorrow is too f*****g early, so next Thursday?" Landry then told Defendant he needed another $150 to get the crossbow, and if he could get the crossbow, he could do the deed the following Thursday.

         The two men next discussed living on the yacht Defendant planned to buy after collecting his wife's life insurance money. Defendant stated he was tired of living the way he was living and tired of his bills. He then asked Landry what other bills he needed to pay. When Landry commented that "the heat" should not come onto him if they planned it correctly, Defendant responded "then let's finish the planning." Defendant describes how he wants to wait a day or two to buy the crossbow so that he can use cash funds from a tenant to pay for the crossbow rather than taking money out of his account. Landry reaffirms he only needed $150 more to buy the bow. Defendant then states he wanted his wife out of the way because he was hoping to take money from selling land to go to the Ukraine to meet a woman with whom he had been communicating on the internet. Defendant specifically states he did not want to wait to get this woman, noting that if he filed for divorce, he would have to wait six months to be able "to move on." Defendant then shows Landry pictures of the yacht he was planning to buy, and notes that Jennifer's life insurance would provide him with $100, 000 needed for a down-payment. He also ruminates that he could afford the monthly note because his other bills would be paid off. According to Perry, after the recorded meeting on October 7, 2015, they decided to have Landry meet with Defendant on video again on October 9, 2015. He obtained an arrest warrant for Defendant on October 9, 2015. Perry noted that a local judge signed the arrest warrant granting law enforcement the right "to arrest [Defendant] at any time [they saw] fit." He also obtained a search warrant for Defendant's home on the same date. Perry testified that on October 9, 2015, officers with the Abbeville Police Department and the Louisiana State Police observed Defendant leave his house, go to the bank, and then meet Landry at Landry's home. Perry was at Landry's home during this entire time, so he did not personally observe Defendant's trip to the bank. Perry stated that, once again, Defendant's meeting with Landry was recorded, and the recording was played for the jury.

         The video portion of the recording is unhelpful because the camera is pointed toward the ground during the conversation. However, Defendant can be heard telling Landry if law enforcement learns that he paid for the crossbow, their story is they are buying it to hunt "rabbits and squirrels." Landry asks if Defendant would like to see the crossbow after he purchased it. Defendant states he could look at it, but he would not touch it. Defendant further provided Landry with an excuse concerning two arrows being unaccounted for in the event law enforcement inquired as to why he bought a crossbow with four arrows but has fewer afterwards. Defendant also reiterated Landry should do the job on the upcoming Thursday because Defendant's wife goes to church on Thursdays. After confirming with law enforcement that Defendant left, Landry returned the recording equipment to law enforcement.

         Perry recovered the recording equipment and the $150 Defendant gave Landry while officers with the Abbeville Police Department arrested Defendant on his way back home. Perry testified he and Anthony Pardo (Pardo), another investigator with the Louisiana State Police, spoke to Defendant after he was arrested. After being advised of his constitutional rights, Defendant invoked his Fifth Amendment privilege against self-incrimination and refused to answer any questions.

         Perry testified Defendant, after being arrested, requested a towing company be called to remove his vehicle. The police inventoried Defendant's truck prior to the towing company hauling it away. During the inventory, Perry found a Capital One bank receipt from that morning showing Defendant deposited a $1, 400 check and removed $150 cash, for a total deposit of $1, 250.

         Perry testified he first met Jennifer a week after the authorities arrested Defendant. She was at the bank when Perry served a subpoena duces tecum seeking records of Defendant's bank account. Perry stated law enforcement also discovered a $30, 000 loan applied for by Defendant. Jennifer understood the loan was for repairs to their rental properties. She provided Perry with a copy of the loan book for the $30, 000 loan, which contained a note written by Defendant stating: "Rental units, pay off October 2015--2015." Jennifer told Perry there was no way they could have paid off the loan that quickly. Perry testified in addition to the $500, 000 life insurance policy covering both Defendant and his wife, there was also an additional $100, 000 policy on Jennifer payable as a lump sum to Defendant.

         On cross-examination, Perry confirmed that prior to the recorded conversations on October 7 and October 9, 2015, law enforcement spoke with Landry and told him he needed to continue the dialog from his initial recorded conversation with Defendant before he contacted Hardy. Perry testified he was convinced law enforcement had a strong enough case against Defendant prior to the October 9, 2015 conversation, and that they would have arrested Defendant even if he had not provided the $150 cash to purchase the crossbow. He further testified that a Mac computer and an external hard drive were recovered from Defendant's home, but neither those nor Defendant's cellular phone contained any evidence indicating he planned to have his wife murdered.

         Guidroz, a detective and investigation supervisor with the Louisiana State Police since 2010, testified he took photographs during the October 7, 2015 meeting between Defendant and Landry at Landry's home. He further testified he and another Louisiana State Police investigator, Katie Morell (Morrell), met with Jennifer shortly after Defendant's arrest on October 9, 2015, and informed her of Defendant's arrest and the plot to kill her. On cross-examination, Guidroz testified Defendant's participation in the plan to murder his wife included giving Landry the $150 for the crossbow and participating in the various planning conversations. On re-direct examination he verified that none of the conversation Landry recorded on his phone, prior to contacting law enforcement, was instigated or directed by law enforcement.

         Landry testified he and Defendant were longtime friends, since they were small children, and Defendant and Jennifer were the godparents of his youngest son. He was best man at the couple's wedding. Nevertheless, Defendant first asked Landry to confirm their close friendship and then told him he was considering having Jennifer killed because of a "Russian bride" and a desire to not lose his property in a divorce. Landry stated he told Defendant it was a dumb idea, but Defendant kept bringing it up for months, after which time he decided to contact Hardy to report that Defendant kept talking to him about killing Jennifer. Landry stated Defendant discussed his desire to kill Jennifer in detail a few times but sometimes he spoke only in generalities. He testified it was Defendant's idea to kill Jennifer with a crossbow when she returned from church, at night, so that it would not make too much noise and alert the neighbors because Defendant's family lived nearby. He further stated he realized Defendant was serious after he kept talking about killing Jennifer for months. Eventually, he feared for Jennifer's safety. Landry testified he never intended to kill Jennifer, nor he did he want Defendant to have Jennifer killed. In his testimony Landry reiterated he did not initially take Defendant seriously.

         On cross-examination, Landry claimed he agreed to do the recordings after his initial conversation with Hardy because law enforcement told him he could either help, or go home and hope nothing happened to Jennifer, but they would come after him as an accessory if something happened.

         Jennifer testified she met Defendant when she was fifteen, and at the time of Defendant's arrest they had been married for almost twenty-five years. They have two adult children. She stated she considered divorce when she was thirty because Defendant was loud and vulgar, and although she was never afraid of him, Jennifer testified that during their marriage she "hurt quite a bit." She stated she and Defendant engaged in arguments and shouting matches. She explained that Defendant was disabled but she worked full-time. He controlled their bank accounts and Jennifer was "encouraged not to spend money." She felt she had to take care of herself and him, and any request for him to help her around the house "might start something." As a licensed practical nurse, Jennifer administered weekly testosterone shots to Defendant per his doctor's instructions.

         Jennifer testified she and Defendant secured a loan in March of 2015 for $30, 000 to replace the roofs on their rental properties, but she had no idea why the payment book had a note that read "[p]ay off October 2015." She maintained there was no way they could pay the loan off that quickly. Jennifer explained that although she and Defendant knew Landry for a long period of time and were friends when their children were young, she did not have a high opinion of Landry. She was surprised when Defendant and Landry began talking frequently, but she encouraged it because Defendant "didn't have any other friendships, true friendships I mean. He knew a lot of people, but not friendships."

         Jennifer explained that on the Wednesday before Defendant was arrested, she gave blood at work and that night she had to lie down on the bathroom floor to avoid passing out. Defendant was also in the bathroom, but he never checked on her or even asked if she was alright. She further testified that, although Defendant never threatened her life, he had a running joke that she was worth more dead than alive, referring to their large life insurance policies. She was not surprised when law enforcement told her what happened and had no problem believing Defendant would try to have her killed, stating: "[T]he animosity that he exhibited towards other people who he thought had done him wrong, if he for some reason felt that he needed me out of the way so he could have the life he wanted, I don't doubt he would have a problem with that." Jennifer also testified that in 2002, Defendant was arrested for simple battery when he hit Jennifer's father.

         Defendant took the stand on his own behalf. He asserted he knew Landry since eighth grade, not from the age of six or seven. He maintained he did not associate with Landry because Landry was selling his own prescription drugs. Defendant alleged Landry threatened to "make [him] pay" for not offering to help him get a job and claimed that Landry initiated the idea of killing Jennifer. He asserted it was Landry's idea to kill his wife not his idea. Defendant claimed he had a friend in law enforcement that he was going to have catch Landry trying to kill Jennifer. He also alleged he had been talking to someone in Ukraine, but that everything he said about bringing her over was "strictly bull***t" which was said as part of playing along with Landry's scheme.

         Defendant maintained he gave Landry $150 because they had talked about going camping in Pollock, Louisiana. He testified that after he and Jennifer attended marriage counseling in Lafayette in 2001, "the next ten or twelve years [their marriage] was outstanding from there." He further commented that "three or four times a week having sex, I thought our marriage was going fairly well after 24-1/2 years." He did, however, agree with Jennifer's description of his behavior, noting "I'm an a**hole." Defendant asserted that when Jennifer was giving him testosterone, he was having rage incidents that he does not remember. He repeatedly claimed the entire scheme to murder his wife was Landry's idea and that he was just playing along. He asserted his references to stress during the recorded conversations was just him repeating Landry's words back to him and again insinuated that Landry, not he, wanted to kill Jennifer for the insurance money. Nevertheless, Defendant acknowledged he paid for half the cost of the murder weapon. On cross-examination Defendant repeatedly claimed that everything he said and did in the videos was his attempt at playing along with Landry's idea of murdering his wife for her life insurance proceeds.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one such error.

         The record before this court fails to indicate the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Therefore, we hereby direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record demonstrating Defendant received such notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

         ASSIGNMENT ...


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