Opinion
2014 KA 1686
04-24-2015
STATE OF LOUISIANA v. RICHARD A. BETHELY
Hillar C. Moore, III District Attorney Stacy Wright Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Andre Belanger Baton Rouge, Louisiana Counsel for Defendant-Appellant Richard A. Bethely
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 04-10-0664, SECTION III, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE MIKE ERWIN, JUDGE Hillar C. Moore, III
District Attorney
Stacy Wright
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Andre Belanger
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
Richard A. Bethely
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. Disposition: CONVICTIONS AND SENTENCES AFFIRMED.
CHUTZ, J.
Defendant, Richard Antwine Bethely, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count one), and with attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (count two). He pled not guilty. Defendant filed a motion to suppress his inculpatory statements, which the trial court denied. Following a jury trial, defendant was found guilty as charged on both counts. The trial court denied defendant's motion for new trial and sentenced him on count one (second degree murder) to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, and on count two (attempted second degree murder) to fifty years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to run consecutively. Defendant now appeals, arguing in a single assignment of error that the trial court incorrectly denied his motion to suppress. For the following reasons, we affirm defendant's convictions and sentences.
FACTS
From approximately early November to mid-December 2009, Yolanda Franklin lived with Avis Daniel at his apartment in Baton Rouge. Daniel rented the apartment, and Franklin lived there as she attempted to get her life back on track. During the time she stayed with Daniel, Franklin met defendant, who introduced himself as "Chop." Over a period of about a month, Franklin and defendant carried on a casual relationship, throughout which they occasionally engaged in sexual intercourse. During this time, defendant visited Franklin at Daniel's apartment on several instances.
Defendant also later told Franklin that his name was "Kenneth" and that his rap name was "Merciless."
On at least two occasions, defendant witnessed Franklin in the presence of another man (besides Daniel). The first time, defendant went to Daniel's apartment in the early morning (approximately 4:00 or 5:00 a.m.). When he knocked on the door, Franklin, Daniel, and a male friend named Dee were visiting. Seeing that Franklin had company, defendant left. The second time, Franklin was returning to Daniel's apartment complex with a male, Randy, who she was potentially interested in dating. As Franklin leaned back into Randy's vehicle to kiss him goodbye, she noticed defendant sitting in his white Pontiac Grand Prix, which was parked next to the complex's dumpster. Defendant did not follow Franklin to Daniel's apartment.
Late on the evening of December 18, 2009, Franklin was walking home to Daniel's apartment complex when she began to hear loud music as she approached one of the complex's gates. She turned around and saw defendant's white Pontiac Grand Prix. Defendant called out to Franklin and told her that he was going to teach her about "playing with" him and that he was going to "smash" her. Defendant also allegedly admitted to Franklin that he had set Daniel's vehicle on fire several days earlier. Franklin ran inside the complex and made her way to Daniel's apartment. She told Daniel what defendant had said to her, and Daniel opened the door to look for defendant but did not see him. Eventually, Franklin took a shower and went to sleep on Daniel's living-room couch around 3:15 a.m. (on December 19).
Around 4:00 a.m., Franklin woke up to loud banging on Daniel's apartment door. Daniel asked who was there, and the person outside identified himself as Kenneth. Daniel walked to the door and opened it, at which point he was immediately shot. Franklin saw Daniel fall to the floor, and she looked at the doorway to see defendant standing there with a gun. Defendant turned toward her and shot multiple times. Franklin suffered wounds to her face, arm, torso, and leg, but she survived her injuries. Daniel died almost immediately from a gunshot wound to his face, which caused projectile fragments to lodge in skeletal muscle in the back of his neck.
When officers responded to the scene of the shooting, Franklin was still conscious. In speaking to BRPD Officer Adam Lea, she identified her assailant as "Kenneth." On the day following the shooting, BRPD Detective Brian Watson received a tip from an anonymous caller and several Crime Stoppers tips that defendant was the individual who had shot Daniel and Franklin. On the basis of that information, BRPD Detective John Norwood presented Franklin with a six-photograph lineup. From that lineup, Franklin identified defendant as the person who had shot Daniel and herself.
Subsequent to Franklin's positive identification of defendant, Detective Watson secured an arrest warrant for defendant and search warrants for several addresses, including homes occupied by defendant's mother and wife. Defendant was ultimately arrested following a brief foot pursuit from his mother's home. He later gave a statement in which he admitted to shooting Daniel and Franklin, but claimed that he did so out of self-defense.
MOTION TO SUPPRESS
In his sole assignment of error, defendant argues that the trial court erred in denying his motion to suppress his inculpatory statements. He contends that he made these inculpatory statements only after the police threatened to arrest his wife, thereby unlawfully coercing his confession.
The state bears the burden of proving the admissibility of a purported confession. La. C.Cr.P. art. 703(D). Louisiana Revised Statutes 15:451 provides that, before a purported confession can be introduced in evidence, it must be affirmatively shown to be free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his/her Miranda rights. State v. Plain , 99-1112 (La. App. 1st Cir. 2/18/00), 752 So.2d 337, 342. The state must specifically rebut a defendant's specific allegations of police misconduct in eliciting a confession. State v. Thomas , 461 So.2d 1253, 1256 (La. App. 1st Cir. 1984), writ denied, 464 So.2d 1375 (La. 1985).
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966).
Whether a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. State v. Benoit , 440 So.2d 129, 131 (La. 1983). The trial court must consider the totality of the circumstances in deciding whether a confession is admissible. State v. Hernandez , 432 So.2d 350, 352 (La. App. 1st Cir. 1983). Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten , 04-1718 (La. App. 1st Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 05-1570 (La. 1/27/06), 922 So.2d 544.
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones , 01-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 02-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. State v. Wesley , 10-2066 (La. App. 1st Cir. 9/14/11), 77 So.3d 55, 57-58, writ denied, 11-2311 (La. 9/21/12), 98 So.3d 322; see also State v. Green , 94-0887 (La. 5/22/95), 655 So.2d 272, 281. However, a trial 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.
The sole witness to testify at defendant's suppression hearing was Detective Watson. Prior to defendant's statement, he was informed of his Miranda rights via a waiver of rights form, which he signed. Detective Watson testified at the hearing that no promises or inducements were made to get defendant to give his statement.
On cross-examination, Detective Watson admitted that he lied to defendant twice during the interrogation. First, he told defendant that the police had recovered bloody clothes, shoes, and a gun from a dump in Baker. In fact, no bloody clothing or a gun was ever recovered. Additionally, he told defendant that they would find the victims' blood in the white Pontiac Grand Prix, a car which actually belonged to defendant's wife, when the interior was searched with a light. In reality, none of the victims' blood was ever recovered from the vehicle. Prior to these misleading statements by Detective Watson, defendant categorically denied any involvement in the incident.
At trial, the state played for the jury the entire videotaped recording of defendant's interrogation. In the interrogation, which lasts approximately one hour, defendant initially stated that he had no idea about any murder that had taken place. After Detective Watson's misleading statements about the evidence against him, defendant began to grow quiet. Detective Watson then made a statement that if defendant was not responsible for the shooting, then based on the purported evidence, the only other person who could be responsible was defendant's wife. Almost immediately, defendant stated that she had nothing to do with any shooting. Detective Watson then explained that if he were to believe defendant's earlier statements, then he would ultimately have no choice other than to arrest defendant's wife. Ultimately, defendant decided to give his version of the story. He explained that he had gone to Daniel's apartment to purchase some pills, and Daniel accused him of setting his vehicle on fire. Defendant stated that Daniel retrieved a gun, which defendant wrestled away from Daniel and then used to shoot both Daniel and Franklin. Defendant claimed he shot them in self-defense. Defendant said he later disposed of his clothes, shoes, and the gun at a friend's house in Baker.
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).
In denying the motion to suppress, the trial court simply noted that law enforcement officers can lie in an interrogation. The court found that, in the face of these lies, defendant elected to confess. We note first that the state proved that defendant had been read his Miranda rights at the time of his inculpatory statement. While we also recognize that Detective Watson admittedly lied to defendant regarding the evidence that the police had collected against him, such misleading interrogation techniques have been consistently upheld. See State v. Holmes , 06-2988 (La. 12/2/08), 5 So.3d 42, 73, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009).
Our inquiry does not end there, however. This court also must determine whether Detective Watson's statement concerning the potential arrest of defendant's wife rose to the level of a threat that would undermine the free and voluntary nature of defendant's confession. Based on our review, we find that it did not rise to the level of such a threat. While defendant may have had a genuine concern for his wife's welfare, he was in no way coerced into incriminating himself in order to shield his wife from arrest. See State v. Brown , 504 So.2d 1025, 1031 (La. App. 1st Cir.), writ denied, 507 So.2d 225 (La. 1987).
In Brown , the defendant was arrested for driving a stolen vehicle. At the same time, the defendant's girlfriend and sister were arrested for driving another stolen vehicle. In his interrogation, defendant asked if the two women would be put in jail, and the detective told him, "[I]f you get your business straight, I'll let 'em go, you know, if they hadn't had anything to do with it, if they didn't know it was stolen." See Brown , 504 So.2d at 1031. The defendant then confessed to several crimes, including the theft of the vehicle that his sister and girlfriend were driving. The Brown court found that no one threatened the defendant, used force or violence upon him, promised leniency, or in any way coerced his statements. Brown , 504 So.2d at l031.
The facts in Brown are analogous to those in the instant case. In Brown , the thrust of the detective's statement was to inform the defendant that if his girlfriend and sister had nothing to do with stealing the vehicle in which they were arrested, then they would be released. However, the detective indicated that the defendant's statement was going to be needed to clear their names. In the instant case, Detective Watson presented a set of purported facts (the recovery of the gun and bloody clothing and the probable discovery of blood in the white Pontiac Grand Prix) that defendant apparently believed. Though these statements were lies, they certainly made defendant feel as though the police had substantial evidence relating to the incident. As explained above, Detective Watson was within his rights to mislead defendant in this way. Having secured defendant's apparent belief in these statements, Detective Watson then explained that if defendant continued to disclaim responsibility, then the only other person with a logical connection to the vehicle would be defendant's wife, meaning that she might be arrested. Almost immediately, defendant stated that his wife had nothing to do with any shooting, and he subsequently gave Detective Watson his version of the incident.
We note the connection, which may have been informed by the anonymous or Crime Stoppers tips, between Detective Watson's statement about recovering evidence at a Baker dump and defendant's subsequent admission that he disposed of evidence at a friend's house in Baker.
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After carefully reviewing the testimony adduced at the motion to suppress hearing and at trial, and defendant's videotaped statement, in light of the entire record, we find that the state met its burden of proving defendant's confession to be freely and voluntarily given. Prior to his statement, defendant was informed of his Miranda rights. The primary impetus for defendant's inculpatory statements appears to have been Detective Watson misleading defendant to believe that there was substantial evidence against him. That technique has been repeatedly held to be lawful. Detective Watson's statements concerning defendant's wife were simply logical extensions of the lies that defendant had apparently begun to believe. Even then, defendant's statements consisted of an explanation intended to mitigate his responsibility for the incident. Therefore, the totality of the interview clearly conveys that the statements were not made because of any promises, coercion, or threats. We find no abuse of discretion in the trial court's denial of the motion to suppress.
Even assuming, arguendo, that defendant's statement should have been suppressed, any error in denying the motion to suppress constituted harmless error that would not have changed the outcome of the trial. A trial error does not provide grounds for reversal of a defendant's conviction and sentence unless it affects substantial rights of the accused. See La. C.Cr.P. art. 921; State v. Juniors , 03-2425 (La. 6/29/05), 915 So.2d 291, 331, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The test is whether there is a reasonable possibility the error might have contributed to the conviction and whether the court can declare a belief that the error is harmless beyond a reasonable doubt. The reviewing court must find that the verdict actually rendered was surely not attributable to the error. Juniors , 915 So.2d at 331.
In this case, there was overwhelming, uncontroverted evidence of defendant's guilt in the form of Franklin's extensive testimony regarding her relationship with defendant and the details of the incident, including defendant's identity as the perpetrator. This testimony alone would have been sufficient to convict defendant of the offenses charged. See State v. Orgeron , 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). Further, defendant's videotaped statement presented a version of the events that contradicted Franklin's narrative and was more favorable to his own defense. Therefore, the admission of the videotaped statement essentially allowed defendant to present to the jury his version of the incident without being subject to cross-examination. Accordingly, the admission of defendant's videotaped statement cannot reasonably be said to have contributed to the verdicts. In view of the other evidence presented of defendant's guilt, it is clear that the guilty verdicts actually rendered were surely unattributable to the admission of defendant's videotaped statement.
This assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.