State v. Penns

407 So. 2d 678
CourtSupreme Court of Louisiana
DecidedDecember 14, 1981
Docket81-KA-0923
StatusPublished
Cited by9 cases

This text of 407 So. 2d 678 (State v. Penns) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Penns, 407 So. 2d 678 (La. 1981).

Opinion

407 So.2d 678 (1981)

STATE of Louisiana
v.
Esther PENNS.

No. 81-KA-0923.

Supreme Court of Louisiana.

December 14, 1981.

*679 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Lindsay Larson, Asst. Dist. Attys., for plaintiff-appellee.

Clyde D. Merritt, and Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

KLIEBERT, Justice Ad Hoc[*].

On May 24, 1979, detectives were investigating the shooting of a ten year old child who was then hospitalized at Charity Hospital for gunshot wounds. They found the child's mother, Esther Penns, the defendant here, in the waiting room at Charity Hospital. She was orally advised of her rights and asked to accompany the detectives to the Juvenile Division for questioning. She was taken to the Juvenile Bureau and prior to questioning was read her Miranda rights from the Rights of Arrestee form used by New Orleans Police and signed a statement which acknowledged her having been read her rights.

While giving an inculpatory statement regarding the attempted murder of her daughter, the defendant admitted to the drowning of her four year old son, Hiram, who had been missing since May 13, 1979 and was placed under arrest. The statement was taped and subsequently transcribed by one of the officers and submitted to the defendant who signed it.

The following day, May 25, 1981, she was brought before the Magistrate who appointed counsel. On the same day, i.e., the day after the statement was given, the detectives found a badly decomposed body of a child in a green plastic bag which had been shoved under some yucca bushes behind the St. Bernard Housing Project where Ms. Penns lived. The same night, two detectives interviewed her in the prison. The defendant was advised of her Miranda rights which included her right to remain silent and a right to have an attorney present during questioning. She proceeded to give a brief oral statement which admitted that the body found in the garbage bag was that of her son.

Prior to the trial, defense counsel filed a motion to suppress the confessions and the evidence. After a hearing the trial judge found and ruled that the statement made on May 24, 1979 was made under full knowledge of her rights and without coercion and, hence, was admissable. Additionally, the trial judge found that the oral statement made in parish prison on May 25, 1979 was a pre-indictment statement and, hence, admissable. The motions to suppress were denied. The defendant was indicted on June 7, 1979 and on December 13, 1979 was tried and convicted for first degree murder of her son, Hiram Davis, by a unanimous twelve person jury. She was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. On appeal, five assignments of error are made and argued.

The first assignment of error concerns the trial judge's refusal to suppress the taped and written statement taken from *680 the defendant on May 24, 1979 as well as the oral inculpatory statement made on May 25, 1979. The defendant's counsel argues that the defendant's constitutional rights were violated because she did not knowingly and intelligently waive her rights to remain silent and to have her attorney present at the time of questioning. As far as the written statement is concerned the arguments centered around the following questions asked by the police officer and the answers given by the defendant.

"Q. You've signed form of N.O.P.D. Rights of Arrestee Form # 130415, indicating that you have understood your rights and wish to waive them, is that correct?

A. What that means, wish to waive them?

Q. In other words, you are going to talk to us and make a statement about your knowledge about what happened.

A. Yes."

Counsel argues that since she did not know what the word "waive" meant, and she was not adequately instructed as to its meaning, she could not willingly and intelligently waive her rights.

The principles that govern a custodial interrogation once the required warnings have been given were set forth by the Supreme Court in Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980), by restating the principles from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders." 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694.

Taken out of context rather than as part of the whole, the portion of the statement made by the defendant and above quoted might lead one to conclude the defendant did not willingly and intelligently waive her constitutional rights to remain silent. From the entirety of the evidence submitted at the hearing of the motion to suppress the statement, the trial judge concluded and we conclude that the defendant did willingly and intelligently waive her right to remain silent and her right to counsel. According to the police officer's testimony, the defendant was orally informed of her Miranda rights and was then read the rights from the Right of Arrestee form and then agreed to and did sign the Rights of Arrestee form as well as the statement in question here. Although the tape made at the time the statement was given is not in evidence, there is ample testimony by the police officers taking the statement for the trial judge and for us to believe the statement was transcribed as given. Reading the statement as a whole leads us to believe the defendant knowingly waived her Miranda rights because she wanted to confess to what she had done. When Officer Henderson was asked on cross-examination why he thought Ms. Penns understood her Miranda rights, he replied: "Because I said it in simple terms and I went over it with her and she said she understood and she seemed to be a reasonable, intelligent type person, so I figured she understood."

Following the admission of her confession into evidence, the defendant took the witness stand before the jury and testified that she had gone only to the fourth grade in school, her mother had said she *681 was retarded and she did not understand what it meant to waive her rights. Her counsel now contends her low intelligence prevented her from giving a knowing and intelligent waiver.

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