Page 1

Judgment rendered December 12, 2003

Application for rehearing may be filed

within the delay allowed by Art. 922,

La. C.Cr.P.

No. 37,841-KA

COURT OF APPEAL

SECOND CIRCUIT

STATE OF LOUISIANA

* * * * *

STATE OF LOUISIANA

Appellee

versus

ROBERT CLANSEY STEWART

Appellant

* * * * *

Appealed from the

Thirty-Ninth Judicial District Court for the

Parish of Red River, Louisiana

Trial Court No. 92,787

Honorable Lewis O. Sams, Judge

* * * * *

BERTHA MOSELEY HILLMAN

Counsel for

Louisiana Appellate Project

Appellant

ROBERT CLANSEY STEWART

Pro Se

WILLIAM R. JONES

Counsel for

District Attorney

Appellee

* * * * *

Before BROWN, WILLIAMS and STEWART, JJ.

BROWN, C.J.,

Defendant, Robert Clansey “Rocky” Stewart, entered a guilty plea to

first degree murder without capital punishment, reserving his right to appeal

the denial of his motion to suppress his confession and the evidence seized

as a result thereof. See State v. Crosby, 338 So. 2d 584 (La. 1976), which

held that a defendant may plead guilty while reserving his right to appeal an

adverse pretrial ruling. A life sentence was imposed and this appeal

followed. Finding that defendant’s statements were freely and voluntarily

given, we affirm his conviction and sentence.

Facts

Wendi Long lived with her parents in the Martin Community in Red

River Parish, Louisiana. Wendi was 21 years old when she was reported

missing. She was last seen on April 14, 2001. Her disappearance was being

investigated by the Red River Parish Sheriff’s Office. Defendant and Wendi

had attended a party on the night of April 13, 2001, and defendant had given

law officers information that he had seen Wendi getting into a pickup truck

with two men.

In October, November and December of 2001, while in custody in

Natchitoches Parish on unrelated charges, defendant gave a series of

statements to Danny Hall, an investigator with the Natchitoches Parish

District Attorney’s Office, which led to the discovery of Wendi Long’s

body in rural Red River Parish. In a statement made on December 4, 2001,

defendant confessed to shooting Wendi twice in the back of the head after

engaging in rough sex.

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Discussion

Denial of Motion to Suppress Confession

Notwithstanding the presence of an attorney retained by his family to

represent him, and the fact that he was advised of his Miranda rights,

defendant argues that his confession was not free and voluntary because he

was led to believe that he would receive a short sentence if he confessed. He

contends that the investigator asked him whether he wanted to be an old man

or a young man when he got out of prison; defendant claims that he

understood this to mean that if he cooperated he would get a shorter

sentence.

At a hearing on a motion to suppress a confession, the state bears the

burden of proving beyond a reasonable doubt the free and voluntary nature

of the confession. La. R.S. 15:451; La. C. Cr. P. art. 703(C); State v. Hills,

354 So. 2d 186 (La. 1977); State v. George, 37,492 (La. App. 2d Cir.

09/24/03), 855 So. 2d 861; State v. Roddy, 33,112 (La. App. 2d Cir.

04/07/00), 756 So. 2d 1272, writ denied, 00-1427 (La. 05/11/01), 791 So. 2d

1288; State v. Rogers, 476 So. 2d 942 (La. App. 2d Cir. 1985).

Before a confession can be introduced into evidence, the state must

affirmatively prove that it was not made under the influence of fear, duress,

intimidation, menaces, threats, inducements or promises. La. R.S. 15:451;

La. C. Cr. P. art. 703(D); State v. George, supra; State v. Roddy, supra.

The state must also establish that an accused who makes a statement during

custodial interrogation was first advised of his Miranda rights. Id.; State v.

Walker, 28,577 (La. App. 2d Cir. 10/04/96), 681 So. 2d 1023.

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The admissibility of a confession is a question for the trial court.

When determining admissibility, the trial court’s conclusions on the

credibility and weight of testimony relating to the voluntary nature of the

confession will not be overturned on appeal unless they are unsupported by

the evidence. State v. Benoit, 440 So. 2d 129 (La. 1983); State v. Roddy,

supra; State v. Dailey, 607 So. 2d 904 (La. App. 2d Cir. 1992). Great

weight is placed upon the trial court’s factual determinations because of its

opportunity to observe witnesses and assess credibility. State v. Roddy,

supra; State v. Crews, 28,153 (La. App. 2d Cir. 05/08/96), 674 So. 2d 1082.

Testimony of the interviewing police officer alone may be sufficient to prove

that the statement was given freely and voluntarily. State v. Trotter, 37,325

(La. App. 2d Cir. 08/22/03), 852 So. 2d 1247; State v. Henderson, 31,986

(La. App. 2d Cir. 08/18/99), 740 So. 2d 240.

At issue are four statements given by defendant on four separate

occasions before he was arrested for Wendi Long’s murder. Defendant

made these statements to Det. Hall while he was jailed in Natchitoches Parish

on other unrelated felony charges.

Detective Danny Hall’s Testimony

(1) October 23, 2001. Detective Hall initiated this first meeting. Det.

Hall testified that defendant would not allow the officer to advise him of his

Miranda rights, and that defendant told him that he would talk to him as Long

as his rights were not read to him. Defendant did not seek to suppress what

he and Det. Hall discussed, as he simply agreed to help in finding the two

men he claimed Wendi left with.

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(2) November 8, 2001. After the first interview, Det. Hall testified that

defendant asked for another meeting. On November 8, 2001, Det. Hall met

with defendant and his attorney, Laura Johnson. At that meeting, he advised

defendant of his rights, although defendant refused to sign the advice of

rights form. Defendant told Det. Hall that he had received a telephone call

and that he knew where Wendi Long’s body could be found. Defendant

then gave details and Det. Hall sketched a map of the location. Thereafter,

the body was found at the site described by defendant.

(3) November 16, 2001. Detective Hall stated that he met with

defendant and his attorney again on November 16, 2001. According to the

detective, defendant again initiated the meeting. Det. Hall again read

defendant his rights and once again defendant would not sign a waiver form.

A taped statement was taken. The tape and transcript show that defendant

was once more advised of his rights. This time, defendant signed to indicate

that he had been read and understood the rights. Detective Hall further stated

that he did not threaten defendant or make any promises or inducements and

noted that defendant did not appear to be under any duress.

Defendant stated that he was driving Wendi back to Natchitoches

from a party they had attended in Shreveport when they stopped at a gas

station. Wendi spoke with two guys in a black Chevrolet truck. Wendi

introduced them to defendant as Mike and Zant. Both trucks traveled down

Highway 1 South and turned down a side road. Defendant claimed that all

three guys had sex with Wendi.

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Mike got a shiny pistol out of his truck and defendant produced his

.25 caliber pistol. They began shooting. Wendi walked in front of the guns

and when he fired, she hit the ground. Defendant said that the two other

guys “freaked out and left.” Defendant stayed five or ten more minutes, by

which time Wendi was no longer breathing. He left her lying there and drove

back toward Shreveport. He threw his clip and pistol out of the truck about

15 miles from the crime scene. He then drove home, changed clothes and

went to bed. In closing, Det. Hall reiterated that there had been no promises

made and defendant acknowledged this to be true.

(4) November 20, 2001. Detective Hall testified that defendant was

again read his rights at the November 20, 2001, interview, which was also

taped. Present at this interview were Det. Hall, defendant, Laura Johnson,

defendant’s attorney, and Deputy Tracy Scott, an investigator from Red

River Parish. Defendant identified two photographs depicting the gun he had

previously described and had thrown out of his truck the night that Wendi

Long was shot.

(5) December 4, 2001. This interview was also taped by Detective

Hall. Defendant was again advised of his rights. At this meeting,

defendant’s attorney, Laura Johnson, was again present.

Defendant answered “yes” to this question asked by Det. Hall:

Okay. I spoke with your attorney, Ms. Johnson, yesterday and she

has indicated to me that you were wishing to come and revisit with me

concerning the case of Wendi Long, some concerns that you have had

prior, uh, we’ve had three interviews and you were wishing to speak

with me again, correct?

1

Ms. Johnson’s withdrawal from representation was based upon defendant’s

inability/unwillingness to compensate her. This point was emphasized at the hearing on the motion

to suppress.

6

Defendant then recanted the portion of his previous statements

regarding Mike and Zant and said that he made up these men and their

alleged involvement in Wendi’s disappearance and death. Defendant

indicated that he was driving Wendi to Natchitoches when they stopped on a

side road so that he could use the restroom. While there, they had “rough

sex,” during which he removed her panties with a knife.

They then began arguing. Wendi slapped defendant and he “flipped

out” and shot her with the pistol that was in his back pocket. Defendant

indicated that he shot Wendi in the back of her head and after she had fallen,

he walked up to her and shot her again. He then dragged Wendi’s body to

the spot where it was eventually found. Defendant said that he took off her

boots and removed her jeans, which were a light color and could have been

seen from the highway in the moonlight.

At the end of his statement, defendant admitted that he had not been

promised anything and confirmed that he had been advised of his rights and

that his attorney had been present.

Attorney Laura Johnson’s Testimony

The defense called defendant’s attorney, Laura Johnson, to testify.

Her testimony refuted defendant’s argument concerning any promises.

1

Ms. Johnson stated that she was initially appointed to represent

defendant on some forgery charges in August 2001. Thereafter, defendant’s

mother retained her to represent defendant in the Wendi Long matter. Ms.

7

Johnson stated that she was not representing defendant when he first met

with Det. Hall in October. She was, however, representing defendant when

he spoke with Det. Hall on November 8, 16 and 20, 2001, and December 4,

2001.

According to Ms. Johnson, she covered with defendant the potential

charges and penalties, from manslaughter to murder with the possibility of

the death penalty. On cross-examination, she clearly stated that no promises

regarding the charge or possible punishment had been made to defendant

prior to his making the statements. Ms. Johnson noted that plea discussions

or sentence arrangements were not at issue, inasmuch as Det. Hall was from

Natchitoches Parish and the case was being investigated by Red River

Parish.

Ms. Johnson testified that her first impression of the case was that it

was not a capital murder case. Such an impression would have been justified

by defendant’s statements prior to the one made on December 4

th

. She

invoked the attorney-client privilege, however, when any questions were

posed regarding what defendant had told her or what she had discussed with

him.

Defendant’s Testimony

The short direct examination did not adequately address the allegations

in the motion to suppress. Defense counsel asked defendant questions

designed to show that Det. Hall had promised that defendant would get

neither a life sentence nor the death penalty if he cooperated with the

investigation.

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Q:

Did he tell you . . . did he give any indication to you about

giving a statement or what would happen if you gave a

statement?

A:

Yes, sir.

Q:

What did he say?

A:

Well, whenever . . . after I asked my second time in confession

he told me that I would be a young man or old man when I got

out. And he asked me which one did I choose. I told him I

would choose to be a young man.

While establishing that defendant, then 25 years old, had dropped out

of high school and had not had a course in civics, the defense did not show

how this lack of education rendered him incapable of understanding the

choices he made. On cross-examination, defendant testified that his attorney

was incorrect and that she did hear the investigator’s statement that

defendant could choose whether he wanted to be a young man or an old man

when he got out of prison. Defendant admitted, however, that he was not

specifically told that he would not get the death penalty. Additionally, the

state was able to elicit on cross-examination that defendant had signed a

series of rights forms which he understood and waived. The state also

established that defendant had a number of prior felony convictions which

demonstrated his familiarity with the judicial process and his knowledge of

the right to remain silent.

The best evidence in determining whether defendant’s statements were

given voluntarily and knowingly and without any inducement, deceptions or

“ploys” as alleged in the motion to suppress are the audio tapes themselves.

After listening to the tapes, it is obvious that defendant wanted to clear his

conscience by confessing what he had done.

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The trial court’s determination that all of defendant’s statements were

free and voluntary is entitled to great weight. The tapes themselves are

indicative of what transpired. Defendant failed to introduce anything of merit

to justify disturbing the finding of the trial court. This assignment of error is

meritless.

Denial of Motion to Suppress Evidence

According to defendant, any evidence obtained as a result of his

statements is tainted as “fruits of the poisonous tree” and therefore

inadmissible. In support, defendant relies upon Wong Sun v. United States,

371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) and its progeny, which

hold that evidence located as a result of information obtained from an illegal

arrest, search or confession should be suppressed. Defendant’s

confession(s) led to the discovery of the body of Wendi Long, as well as a

.25 caliber pistol, bullet clip, bullets and a knife.

Because defendant’s statements were admissible, the evidence

recovered as a result of defendant’s statements are also admissible. See

State v. Williams, 420 So. 2d 1116 (La. 1982). This assignment of error is

without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence

are affirmed. AFFIRMED.