State v. Perkins

381 So.3d 1050

2023-524 (La.App. 3 Cir. 3/20/24)

STATE of Louisiana

v.William G. PERKINS

23-524

Court of Appeal of Louisiana, Third Circuit.

March 20, 2024

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 4278-21, HONOR

ABLE CLAYTON B. DAVIS, DISTRICT JUDGE

Annette Roach, Louisiana Appellate Project, P. 0. Box 6547, Lake Charles, LA 70606, (337) 436-3384, COUNSEL FOR DEFENDANT/APPELLANT: William G. Perkins

Steven C. Dwight, District Attorney, David S. Pipes, Hope Buford, Kadence Huber, Assistant District Attorneys, Fourteenth Judicial District, 901 Lakeshore Drive, Suite 800, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Jonathan W. Perry, Judges.

KYZAR, Judge.

₁Defendant appeals his conviction for first degree rape. For the reasons herein, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On February 25, 2021, a Calcasieu Parish Grand Jury returned a true bill of indictment, charging Defendant, William G. Perkins, with first degree rape, in that "on or about January 17, 2021, [he] did commit first degree rape upon J.R. whose date of birth is March 24, 2006, where the anal sexual intercourse is deemed to be without lawful consent of the victim because the victim has an intelligence quotient of seventy or lower, a mental infirmity, preventing the victim from resisting the act, in violation of La.R.S. 14:42 A(6)[.]"¹ On April 5, 2021, Defendant entered a plea of not guilty.

On March 13, 2023, Defendant filed a motion to suppress evidence of a confession made during the course of the investi- gation following his arrest.² At a March 20, 2023 hearing, the trial court denied the motion just prior to the commencement of trial. Defendant objected to the ruling in open court.³

₂At trial, the testimony and evidence reflected that Defendant lived with his wife, Rhonda Perkins, the minor victim, who is his wife’s grandson, and Nancy Collins, his wife’s cousin. Dr. Darrell Turner Ph.D., an expert in the field of forensic psychology, testified that after examining the victim, it was his opinion based on IQ testing that the victim suffered from a " ‘[s]evere to profound level of mental re- tardation[.]’ " Rhonda testified that on January 17, 2021, Ms. Collins called her while she was away from home and reported what she had observed between Defendant and the victim, which prompted her to call the DeQuincy Police Department. In the tape of that call, introduced as evidence, Rhonda reported that her cousin had caught Defendant having sex with the victim at the home where they lived, and she needed the police to go to the home to arrest Defendant. She was noticeably upset during the call and stated that her cousin was afraid. When the police arrived at the home, the initial responding officer, Officer Matthew Kellogg, entered the bedroom where Defendant was and observed Defendant and the victim in bed "face-to- face lying on their sides[ ]" and "embraced in each other’s arms." Defendant had no shirt on, and his pants and underwear were slid down "to where the base of his penis was exposed." While handcuffing Defendant, ₃Officer Kellogg noted "a red liquid on his rear end." He described the victim as an "emotional wreck."

DNA and other forensic evidence provided circumstantial support for the State’s case but was not conclusive in and of itself.⁴ Tammy Smith, a SANE nurse,⁵ testified that she conducted an examination of the victim and that while he reported to "not having consensual sex with anyone in the last five days[,]" he provided "Paw Paw" as the name of his assailant and stated that "Paw Paw said, ‘Don’t tell them anything because it’s none of their business. I’m gonna fuck you up.’" She further stated that the victim told her that Defendant "told me to go pee pee, and when I got back, he laid on top of me." He also told to her that Defendant "got blood on me, and he was farting too." He further stated, "I don’t want you to look at my butt. Paw Paw made the bo bo on my ‘PP’ with his hand."

Defendant was interviewed twice by law enforcement officers, first on January 17, and again on January 18, 2021. He denied any involvement with the victim during the first interview but confessed the next day during the second interview.

On April 20, 2023, the jury returned its unanimous verdict of guilty of the charge of first degree rape. Defendant filed for and was denied a new trial on April 25, 2023. He was sentenced to life ₄in prison on May 19, 2023. On the same day, Defen- dant moved for a reconsideration of his sentence, with a generic statement in the written motion that the sentence was excessive. The motion was summarily denied. This appeal followed, wherein Defendant asserts three assignments of error, as follows:

1. The trial court erred in finding that the statements made by William Perkins were knowing and freely made and not the result of coercion, pressure, improper assurances of help, or intoxication, and further erred in denying the defense’s request to suppress the statements from being admitted as evidence at trial.

2. The trial court improperly impinged upon William Perkins’ right to present a defense when it denied the defense the opportunity to publish the first video recorded interview with William Perkins, which had been admitted into evidence in the State’s case-in-chief but not shown to the jury.

3. The trial court erred in denying the mistrial requested by the defense following an improper inflammatory statement made by Officer Kellogg during his trial testimony.

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 that there are no errors patent.⁶

5OPINION

Denial of the Motion to Suppress

[1–3] In his first assignment of error, Defendant asserts that the trial court erred in finding that the statements he made to investigating officers were knowing and freely made and not the result of coercion, pressure, improper assurances of help, or intoxication. He argues that the trial court further erred in denying the defense’s request to suppress the statements from being admitted into evidence at trial. Specifically, Defendant alleges that the two statements made by him, when questioned by Major Jerry Bell and Lieutenant Doug Phillips within the first thirty-six hours following his arrest, were induced by untrue statements, threats, and promises made by State agents. Defendant asserts that this rendered any purported waiver of his Miranda⁷ rights neither knowing nor voluntary and are violations of his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United ₆States Constitution and Article 1, §§ 2 and 13 of the Louisiana Constitution. It is further urged that the statements were more prejudicial than probative and should have been excluded from evidence.⁸

For a confession to be admissible, the state must show that it was freely and voluntarily given without influence of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; La. C.Cr.P. art. 703(D); State v. Simmons, 443 So.2d 512, 515 (La. 1983). This "voluntariness" determination is based on the totality of the circumstances under which the statement was given, State v. Lewis, 539 So.2d 1199, 1205 (La. 1989), and if the accused gave the statement while in custody, he must have first been advised of his constitutional rights and executed a knowing and intelligent waiver of those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

State v. Brown, 16-998, p. 50 (La. 1/28/22), 347 So.3d 745, 789, cert. denied, — U.S. —, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023).

Concerning questions of whether undue coercion or inducements render a confession inadmissible, our supreme court has long since set forth the necessary analysis for appellate review:

The United States Supreme Court has held that confessions obtained by "any direct or implied promises, however slight, [or] by the exertion of any improper influence" is involuntary and inadmissible as a matter of constitutional law. Bram v. United States, 168 U.S. 532, 542–543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). The rationale of Bram is that even slight inducements held out by a person in authority such as a police officer or prosecuting attorney may render a confession involuntary because the person accused would believe that such an authoritative person is credible and in a position to give ₇effect to the inducement. See 3 Wharton’s Criminal Law and Procedure, Charles E. Torcia (ed.), 1973, § 682, p. 469. A promise of immunity or freedom from prosecution is a particularly powerful inducement to confess, leading one writer to state that in Louisiana, "immunity from prosecution has always been sufficient to deem a confession made in reliance thereon involuntary." 14 La.L.R. 642, 662 (1954). See also 3 Wharton’s Criminal Law and Procedure, supra, § 681 at 466.

In Louisiana the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary and "not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises." R.S. 15:451. The state has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary. R.S. 15:451, C.Cr.P. Art. 703(C), State v. Coleman, 369 So.2d 1286 (La.1979); State v. Volk, 369 So.2d 128 (La.1979); State v. Weinberg, 364 So.2d 964 (La. 1978).

The admissibility of a confession is in the first instance a question for the trialjudge. His conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless

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