STATE OF LOUISIANA v. STANLEY GREEN JR

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Court of Appeal of Louisiana, First Circuit.

STATE OF LOUISIANA v. STANLEY L. GREEN, JR.

2016 KA 1077

Decided: February 17, 2017

BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. Warren LeDoux Montgomery District Attorney, Matthew Caplan Assistant District Attorney, Covington, Louisiana Counsel for Appellee State of Louisiana Bruce G. Whittaker, New Orleans, Louisiana Counsel for Defendant-Appellant Stanley L. Green, Jr.

The defendant, Stanley L. Green, Jr., was charged by grand jury indictment with aggravated rape (count one), a violation La. R.S. 14:42(A)(4),1 and sexual battery of a victim under the age of thirteen (count two), a violation of La. R.S. 14:43.1(C)(2). The defendant entered a plea of not guilty and not guilty by reason of insanity on each count.2 Subsequently, the trial court denied the defendant's motion to suppress statements. After a trial by jury, the defendant was found guilty as charged on both counts. The trial court sentenced the defendant on count one to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, and on count two to forty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to be served concurrently. The State filed a habitual offender bill of information to enhance the defendant's sentence, and the trial court adjudicated the defendant a second-felony habitual offender on count two.3 The trial court vacated the previous sentence imposed on count two and resentenced the defendant on that count to fifty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to be served concurrently with the sentence previously imposed on count one. The defendant now appeals, assigning error to the trial court's ruling on the motion to suppress. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

The victim, S.B., who was six years old at the time, stated during her August 23, 2012 interview at the Children's Advocacy Center (CAC) that her dad (the defendant) did “something” to her during the summer, later specified as May 13, 2012.4 S.B. added that the defendant put lotion on his finger and put his finger in her “um-hum,” that it “hurted,” and that the defendant then made her “stick his um-hum” in her mouth.5 S.B. stated the incident occurred in her parents' bedroom while everyone else was at church, that the defendant's underwear and pants were off, and that her underwear and pants were off while her shirt was on. As they were sitting on the floor, the defendant had removed his lower clothing before instructing the victim to take off her pants. The victim stated after the incident the defendant told her not to tell anyone about it and told her to play a game “like nothing happened.” Using anatomical diagrams, the victim identified her “um-hum” as her vaginal area and the defendant's “um-hum” as his penis.

M.B., the victim's mother, indicated at some point after she returned home from church on Mother's Day, the victim whispered to her that her dad touched her.6 M.B. took the victim to the back yard for privacy and the victim specified that the defendant touched her on her “private area,” which M.B. confirmed meant her vagina. The victim further told M.B. the defendant put his “thing” (also referenced as a “peter” or penis) in her mouth. In disbelief, M.B. confronted the defendant in the victim's presence and he denied her accusations.7 On August 18, 2012, after the victim made disclosures to another family member about the incident, a non-family member contacted the Bogalusa Police Department (BPD) and the CAC forensic interview was scheduled.

After the CAC interview, the police obtained a warrant for the defendant's arrest and conducted an interview of the defendant on August 24, 2012. The defendant was advised of his rights and signed a waiver of rights form. When questioned about the victim's accusations, the defendant initially sat quietly and stone-faced, and then he denied any knowledge of the incident and stated the victim changed her story at some point. The defendant then stated that on the day in question, the victim played a game while the other family members were gone to church and that nothing else happened. He initially denied going back into the room with the victim after setting up the game. He subsequently stated the victim had a heat rash in her vaginal area around that time and M.B. examined her in his presence on one occasion. He indicated he put his finger down toward the victim's vaginal area to point out spots of rash, but denied he touched the victim or ever examined her outside of M.B.'s presence.

After further questioning, the defendant admitted he went back into the room with the victim on the day in question and that his penis was erect at the time. He claimed he did not remember what happened while he was in the room and may have blacked out. According to the defendant, he only remembered walking out of the room after the apparent black-out as the victim was crying. The defendant further admitted to having inappropriate “urges” regarding his daughter (the victim) and other “little” girls, but stated he resisted the urges. At trial, the defendant again admitted to having “urges” toward young children. He indicated he told the police officer what he thought the officer wanted to hear during the videotaped interview because he was scared and trying to avoid the death penalty. He denied committing the charged offenses.

The victim, who was ten years old at the time of the trial, testified the statements she made during her CAC interview were truthful, and reiterated that the defendant did something to her he was not supposed to do.8 She confirmed the “private part” she circled on the drawing of a male figure was a penis, and that she circled the “private” of the female drawing. She recalled the incident happened on Mother's Day (May 13, 2012), and stated that on the night of the incident, she disclosed the defendant's actions to her mother. Additionally, she specifically confirmed the defendant forced her to put his penis in her mouth and put his fingers in her vagina.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends the trial court erred in denying his motion to suppress statements. The defendant argues he was falsely threatened with the death penalty and offered substantial inducements in order to obtain a confession. The defendant further argues his videotaped statement reveals a “slow-witted” accused, who was himself a former victim of child sexual abuse struggling with urges beyond his self-control. Alternatively, the defendant contends the trial court, at the very least, should have suppressed the “most damning of admissions” that he contends came after the interviewing officer falsely suggested the death penalty was a possibility and that the defendant would receive help after confessing to inappropriate urges.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A). The State bears the burden of proving the admissibility of a purported confession. La. Code Crim. 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. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court promulgated a set of safeguards to protect the therein delineated constitutional rights of persons subject to custodial police interrogation. The warnings must inform the person in custody that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; see also 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).

The Louisiana Supreme Court has noted that diminished mental or intellectual capacity does not itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Benoit, 440 So.2d 129, 131 (La. 1983); see also State v. Young, 576 So.2d 1048, 1053 (La. App. 1st Cir.), writ denied, 584 So.2d 679 (La. 1991). Thus, low intellect, moderate mental retardation, or diminished mental capacity does not per se and invariably vitiate capacity to make a knowing and intelligent Miranda waiver. State v. Manning, 2003-1982 (La. 10/19/04), 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005); see also State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 279-283. The State has the burden of proving that the defendant's mental defect did not preclude him from giving a voluntary and free confession with a knowledgeable and intelligent waiver of his rights. The critical factors are whether or not the defendant was able to understand the rights explained to him and whether or not he voluntarily gave a statement. See State v. Stewart, 93-0708 (La. App. 1st Cir. 3/11/94), 633 So.2d 925, 931-32, writ denied, 94-0860 (La. 9/16/94), 642 So.2d 189; Young, 576 So.2d at 1053.

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. Benoit, 440 So.2d at 131. 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, 2004-1718 (La. App. 1st Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544.

A trial court's ruling on a motion to suppress 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, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (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 the ruling is not supported by the evidence. See Green, 655 So.2d at 281; State v. Dunham, 2012-0826 (La. App. 1st Cir. 12/21/12), 111 So.3d 1095, 1097. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. In reviewing the correctness of a trial court's ruling on a motion to suppress a confession, we are not limited to the evidence introduced at the hearing on the motion but may consider all pertinent evidence adduced at trial. State v. Brooks, 92-3331 (La. 1/17/95), 648 So.2d 366, 372.

The following circumstances were presented at the hearing on the motion to suppress. Sergeant David Miller of the BPD was assigned as the lead investigator in this matter and conducted the videotaped interview of the defendant. As Sergeant Miller testified, and as shown on the video, before the questioning began the defendant was informed of his Miranda rights, indicated he understood his rights, and waived his rights verbally and by signing the waiver of rights form. Sergeant Miller denied using any threats, force, or coercion. Sergeant Miller admitted he may have told the defendant he needed counseling and counseling may be made available at some point. He estimated the interview lasted about twenty to twenty-five minutes. In denying the motion to suppress, the trial court found no coercion and noted the defendant signed a waiver.

Subsequently, at trial, the defendant's father testified the defendant only went to school until the eighth grade, confirmed the defendant is slow, and stated the defendant was kicked in the head by a stallion at the age of four years old. The defendant testified he could not keep up with the other students and failed to complete the eighth grade. Further, he testified he was afraid once the death penalty was mentioned during his police interview. He stated when he admitted to having urges, he was only telling the officer what he wanted to hear out of fear of the death penalty and because he was out of his comfort zone. The defendant stated that M.B. was aware of the fact that he had urges, and that before the accusations were made by the victim, he told M.B. he was leaving her for his girlfriend. The defendant speculated that M.B. out of spite prompted the victim to fabricate the accusations, using her knowledge of his inappropriate urges against him.

As noted, the defendant herein was fully advised of his rights and executed a waiver of rights form. Our review of his videotaped interview shows the defendant for the most part consistently denied any wrongdoing. Sergeant Miller repeatedly told the defendant he was giving him an opportunity to tell the truth. Sergeant Miller also stressed that the victim had repeated her story consistently to family members, the police, and during the CAC interview, and indicated he found the victim credible and believed a jury would do the same. He also suggested the defendant may have been molested as a child or had some other reason or explanation for his actions. The defendant eventually admitted to being molested as an eight-year-old boy, but continued to deny the victim's accusations. Sergeant Miller repeatedly reminded the defendant that he was calling his daughter a liar by denying her accusations.

After being repeatedly questioned as to why his daughter would lie about him, the defendant altered his story. He stated he did not remember going back into the room with the victim or committing the alleged acts and claimed he sometimes suffered from black-outs. Sergeant Miller told the defendant that aggravated rape carries a sentence of life in prison without parole and incorrectly stated there was a possibility of lethal injection; he suggested the possibility of the defendant having mental issues that might explain his behavior.

At that point, the defendant admitted he had mental issues, further discussed his black-outs, and admitted he recalled going back into the room with the victim. The defendant suggested he must have blacked out at that point. After several definitive denials of the victim's accusations, the defendant stated he could not remember what happened when he went back into the room with his daughter, although he confirmed his penis was erect and the victim was crying. Sergeant Miller suggested the defendant might receive more help if he had issues resisting his “urges.” The defendant admitted having “urges” toward the victim and other young girls, but claimed he had been able to resist them.

We note that statements indicating a defendant would be better off if he cooperated are not promises or inducements designed to extract a confession. See State v. Lavalais, 95-0320 (La. 11/25/96), 685 So.2d 1048, 1053, cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). Moreover, the voluntariness of a confession will not be negated by mild exhortations by the police to tell the truth or telling a defendant that if he cooperates the officer will do what he can to help or that “things will go easier” for him. See State v. Blank, 2004-0204 (La. 4/11/07); 955 So.2d 90, 108-09, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007); State v. Petterway, 403 So.2d 1157, 1159-60 (La. 1981). A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or one that implies a promise of reward. State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

During his videotaped interview and subsequent trial testimony, the defendant spoke in a sensible, prudent, and coherent manner. After reviewing the testimony adduced at the motion to suppress hearing and the videotape of the defendant's interview in light of the entire record, we find the State met its burden of proving the defendant gave a voluntary and free confession. The mere fact that Sergeant Miller informed the defendant the crime of aggravated rape could carry a sentence of life imprisonment and falsely inserted the possibility of the death penalty does not vitiate the voluntariness of the confession.9

Regarding certain falsehoods used by the police during questioning, the issue is whether or not such tactics were sufficient to make an otherwise voluntary confession or statement inadmissible. See State v. Lockhart, 629 So.2d 1195, 1204 (La. App. 1st Cir. 1993), writ denied, 94-0050 (La. 4/7/94), 635 So.2d 1132. In Lockhart, a detective misled the defendant into believing the police knew more about the case than they really did by telling him the victims had identified him. Another detective stated he would inform the district attorney's office that the defendant contended the shootings were accidental. This court found the detectives' statements to the defendant were not sufficient inducements “to make an otherwise voluntary confession inadmissible.” Lockhart, 629 So.2d at 1204. Similarly, in State v. Sanford, 569 So.2d 147, 150-52 (La. App. 1st Cir. 1990), writ denied, 623 So.2d 1299 (La. 1993), this court determined a defendant's confession was not rendered involuntary, although the detective apparently misled the defendant into believing one of his cohorts had confessed by informing him that the other suspects were “singing like birds.” Sanford, 569 So.2d at 151.

Herein, the State proved the defendant was not precluded from giving a voluntary and free confession with a knowledgeable and intelligent waiver of his rights. The rights form consisted of simplistic phrasing of the rights. Those rights were read to him by Sergeant Miller, and the defendant indicated he understood his rights. During his videotaped interview, the defendant seemed calm and his inculpatory statements appeared to be made willingly. Further, the totality of the interview conveys that those statements were not being made as a result of any promises, coercion, or threats. We find that the remarks at issue in the instant case were no more than mild exhortations to tell the truth that did not destroy the voluntary nature of the defendant's confession. Under the circumstances, the sergeant's statements that the defendant should try to help himself by telling the truth did not amount to prohibited promises or inducements designed to extract a confession. Such noncommittal remarks do not rise to the level of a promise that would induce a defendant to make a statement he otherwise would not have given. See State v. Sepulvado, 93-2692 (La. 4/8/96), 672 So.2d 158, 163, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Thus, we find no abuse of discretion in the trial court's denial of the motion to suppress.

This assignment of error lacks merit.

CONVICTIONS AND SENTENCES AFFIRMED.

FOOTNOTES

1.   While La. R.S. 14:42 was amended to “first degree rape” in 2015, the amendments did not materially alter the substance of the provision. Based on the date of the offense, we reference the previous title. La. R.S. 14:42(E).

2.   The defendant was found competent to stand trial after the defense stipulated to the reports of the doctors appointed to the sanity commission.

3.   The defendant stipulated to the prior offense of issuing worthless checks in violation of La. R.S. 14:71.

4.   Herein, in order to protect the identity of the victim, whose date of birth is November 9, 2005, only initials will be used to identify the victim and her mother. See La. R.S. 46:1844(W)(l)(a).

5.   The victim apparently uses the sound “um-hum” or “uh-huh” interchangeably to reference female and male private body parts.

6.   M.B.'s videotaped testimony occurred outside of the presence of the jury but was played for the jury upon agreement and stipulation by the parties.

7.   The defendant suggested that they immediately take the victim to the hospital to be examined. While the victim was taken to the Bogalusa Medical Center that day, she informed her parents that she did not want to be physically examined, that it was just a dream, and only a sore throat was reported and examined at the hospital.

8.   During the CAC interview, the victim indicated this incident was an isolated occurrence, but she testified at trial the defendant put his “uh-huh” in her mouth on another occasion after the Mother's Day incident.

9.   Under La. R.S. 14:42(D)(2), the District Attorney may elect to seek a penalty for aggravated rape of a person under the age of thirteen of either life imprisonment or of death. In this case, the District Attorney did not elect to seek the death penalty. In any event, the U.S. Supreme Court has held the Eighth and Fourteenth Amendments prohibit imposition of the death penalty in child rape cases where the crime did not result in or was not intended to result in death. Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650-51, 171 L.Ed.2d 525 (2008).

CHUTZ, J.

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