Defendant Edmond Burkhalter was charged with the first degree murder of John Bonnell, a sergeant with the St. Tammany Parish Sheriff's Office participating in a narcotics undercover operation. During negotiations with defendant to purchase $125.00 worth of cocaine, Bonnell was shot and killed in the Desire Project in the City of New Orleans. Burkhalter was apprehended and later confessed. Defendant
Burkhalter now appeals his conviction arguing six assignments of error, none of which are meritorious. Defendant's conviction and sentence are therefore affirmed.
At trial the state adduced the following facts through the testimony of David Vickers.
On the evening of July 9th, as a result of a phone call to defendant, Bonnell and Vickers went to meet him at Roy Jenkins' house in Slidell.
Bonnell was found lying across the front seat of the car with a small caliber automatic, which he normally kept in an ankle holster, held loosely in his hand.
Burkhalter was apprehended later that night and provided a confession to the shooting, wherein he stated that he was afraid of Bonnell, who he claimed had
ASSIGNMENT OF ERROR NO. 1
By this assignment defendant contends that the trial court erred in denying his motion for mistrial on the grounds that the state in closing argument made an indirect reference to the defendant's failure to testify in his own defense.
During the state's closing argument the following took place:
Although defense counsel simply moved for the mistrial without stating his grounds as required by La.C.Cr.P. art. 841, the thrust of his objection was apparent and understood by the trial judge. Defense counsel's contention, presented in brief, is that the comment by the prosecutor amounted to an indirect reference to defendant's failure to testify that was intended to call the jury's attention to the fact that defendant remained silent at trial.
La.C.Cr.P. art. 770 provides that upon request of the defense, the trial court shall declare a mistrial when a remark made by the district attorney refers directly or indirectly to "[t]he failure of the defendant to testify in his own defense...." This Court discussed the article in State v. Fullilove, 389 So.2d 1282, 1283-84 (La.1980):
We further stated:
Although the legal discussion is pertinent, the comment in the state's closing argument in Fullilove is distinguishable from that in the instant case. There the prosecutor stated that "this man has been afforded his constitutional right. He has been afforded the right not to take the stand." 389 So.2d at 1283.
In State v. Perkins, 374 So.2d 1234 (La. 1979), we found impermissible a reference to testimony as uncontroverted when the defendant was the only person who could dispute the testimony given.
Also misplaced is defendant's reliance upon State v. Carney, 334 So.2d 415 (La. 1976). In that case, after finding reversible error, this Court went on to say that one of the prosecutor's closing comments was an indirect reference to the defendant's failure to testify. The prosecutor had stated: "For some reason, reasons we are not privileged to know—and only the defendant knows—" 334 So.2d 419. The court in a divided opinion
More relevant to the instant case, and on point, is State v. Smith, 327 So.2d 355 (La. 1976) (on rehearing). In Smith the prosecutor in argument stated that the only man who knew what went on in the room, which was the site of the robbery and killing, was the man who walked out of the room with the gun.
Similarly in this case we find no evident intent on the part of the prosecutor to focus attention upon defendant's failure to testify.
As earlier recited in this opinion, defendant in his inculpatory statement had admitted firing about two shots at the head of Officer Bonnell. According to Burkhalter, his reason for doing so was a fear that Bonnell was armed with a .45 and was about to shoot him. The only witness other than defendant and the accomplice Roy Jenkins, also charged with the crime, was David Vickers, the victim's confederate.
The prosecutor was discussing Burkhalter's inculpatory statement. He sought to emphasize defendant's having admitted the shooting, while de-emphasizing, or disputing, defendant's asserted justification for the event. He was urging the jury to accept that defendant did the shooting and to accept Vicker's version that Bonnell was unarmed and no threat to Burkhalter when the shooting took place. In this context the prosecutor discussed favorable state evidence. He noted, appropriately, that Vickers was the only person in the courtroom other than Burkhalter, who knew what really transpired, and he recited Vickers' version of the events.
In this context the prosecutor's remark was not intended to focus on the defendant's not taking the stand at trial. Rather he was asking the jury to compare the respective versions of the defendant and the witness Vickers concerning what had taken place at the moment of the shooting, and to accept the version recited by Vickers. The reference was neither a direct nor an indirect reference to the defendant's failure to testify. Thus the judge's refusal to grant a mistrial did not constitute reversible error.
This assignment of error lacks merit.
ASSIGNMENTS OF ERROR NOS. 2, 4, AND 5
By these assignments defendant contends that the trial court erred in denying his motion to suppress an inculpatory statement. Burkhalter essentially argues that his statement was made under duress after he had been severely beaten by police officers during his arrest and interrogation, and that it was not freely and voluntarily given.
From testimony at the motion to suppress hearing and at the trial, the following facts concerning defendant's arrest were ascertained. At approximately 3:00 A.M. on July 10, 1979, defendant and two others were apprehended while they were driving in the 4400 block of Dale Street in New Orleans. According to the testimony of Sergeant Herman of the St. Tammany Parish Sheriff's Office, Burkhalter was ordered to get out of the car. He came out fighting and one New Orleans police officer was struck in the face. Sergeant Herman was cut on his left hand as he attempted to pull defendant from the vehicle; Burkhalter was wielding a small knife. Herman then hit Burkhalter over the head with his gun; defendant went down but came up wrestling. Several officers had to wrestle him to the ground.
Before a confession or inculpatory statement can be introduced into evidence, the state has the heavy burden of proving affirmatively and beyond a reasonable doubt that it was free and voluntary. The defendant must have given the statement free of the influence of duress, fear, threats, inducements or promises. La.R.S. 15:451; State v. West, 408 So.2d 1302 (La. 1982); State v. Dewey, 408 So.2d 1255 (La. 1982); State v. Henry, 352 So.2d 643 (La. 1977). The admissibility of a confession is in the first instance a matter for determination by the trial judge. His conclusions will
At the hearing on the motion to suppress, defendant testified that during his apprehension he was dragged from a car and beaten in the middle of a street for over an hour. He denied signing his rights of arrestee form and his confession; he contended that his hands were so "busted up" that a police officer held his hand and signed those papers. Burkhalter claimed that he did not have his glasses, without which he could not read, and that his eyes were half-closed from the beating and full of blood. Defendant stated that he had requested a doctor, but was told that he would see a doctor only if and after he gave a statement. On cross-examination Burkhalter denied wielding a knife or cutting a police officer during arrest. He denied not only signing the confession, but making the statement at all. Defendant alleged that the interrogating officer, Detective Genovese, punched him "all over" while he was being interrogated at the detective bureau.
Burkhalter contends principally, then, that he was beaten at the time of his arrest although he did not resist, and again during interrogation. He claims that in his weakened physical state, because of bleeding injuries, especially one at the back of the head, and a pre-existing asthma condition, he was not able to resist when an officer took his hand and signed the confession and rights form for him.
Defendant's testimony was, however, contradicted. Danny McGee, who was arrested with Burkhalter and whose testimony was presented at the motion to suppress hearing by the defendant, stated that the arrest event beating, rather than having covered the period of an hour, did not last long.
Defendant Burkhalter's inculpatory statement, signed by him and admitted at trial over defendant's objection, expresses that Burkhalter was advised of his rights and that he had not been beaten, threatened or coerced into making a confession. Burkhalter had also signed his arrestee rights form. Detective Genovese's testimony at trial was essentially the same as that given at the motion to suppress hearing. The officer consistently asserted that Burkhalter had been advised of his rights, that he had not been struck or beaten at the detective bureau, that defendant was in good physical condition, that defendant had
While defendant was no doubt struck and otherwise physically restrained at the time of his arrest, he had provoked the violence by resisting arrest and by attacking the arresting officers. The trial judge apparently concluded that the conduct of the police was not excessive under the circumstances, and that no force or violence took place after defendant was subdued. Burkhalter did not give his statement until hours later, hours during which there were no threats, physical violence or coercion on the part of police officers. There is ample evidence that when defendant made his statement at the detective bureau, he did so knowingly and voluntarily after being advised of his rights. An overview of the entire record prompts the conclusion that the trial judge did not abuse his discretion.
These assignments lack merit.
ASSIGNMENT OF ERROR NO. 3
By this assignment defendant contends that the trial court erred in denying his mistrial motion based upon a "highly prejudicial reference" to the decedent's wife and family during the state's inflammatory rebuttal argument. The allegedly offensive portion of the argument follows:
At the close of the state's rebuttal outside the presence of the jury, defense counsel moved for a mistrial based upon the reference to the decedent's family about which no evidence had been presented. The motion was denied; defense counsel did not request an admonition.
While the prosecutor's comment that the victim had a wife and a little daughter was arguably inappropriate because, among other reasons, it was beyond the evidence introduced at trial, denial of defendant's mistrial motion with the absence of an unrequested admonition to the jury to disregard the comment does not constitute reversible error. In addition to the fact that La.C. Cr.P. art. 770 does not mandate a mistrial for such a comment, the prejudice from such a remark in this case is non-existent.
This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 6
By this assignment defendant contends that he was denied effective assistance of counsel. He cites instances in closing argument where his appointed counsel stated: (1) that at most his client was guilty of second degree murder which exposed him to a life sentence, and (2) that the jury's focusing deliberation would not likely be upon whether defendant fired the shots but upon whether defendant specifically intended and knowingly and willfully killed the peace officer in the line of duty with knowledge that he was a police officer.
Normally on appeal we do not address assignments relative to ineffective assistance of counsel, relegating such contentions to post conviction relief applications in the district court. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Brown, 384 So.2d 983 (La.1980); State v. Deloch, 380 So.2d 67 (La.1980).
Defendant was on trial for first degree murder for having killed a police officer in the line of duty. He was convicted of only second degree murder. Upon conviction for first degree murder, the jury would have been called upon to decide whether defendant should live or die. Defendant's lawyer succeeded in saving defendant from execution, no doubt in no small measure because of tactical decisions in trying the case like the arguments to which defendant now takes exception.
The assignment of error is without merit.
For the foregoing reasons defendant Burkhalter's conviction and sentence are affirmed.
DENNIS, J., concurs.