February 24, 1999
With a jury seated and the
state Supreme Court refusing to intervene, testimony in a quadruple
murder trial of a Texas native charged in the October 1997 slayings of
his housemates is set to begin today in the Criminal District Court of
Douglas Whitton, 39,
originally of Canton, Texas, is charged with four counts of first-degree
murder in the bludgeoning and stabbing deaths of four people, including
a 9-year-old boy.
Whitton, a recovering
alcoholic and self-professed professional wrestler who has pleaded
innocent to the charges, was arrested a day after the bodies were found.
The family met Whitton at a
church and took him in after Whitton signed himself out of a
In a confession to police
after his arrest, Whitton said he guessed he'd committed the murders,
because when he woke up, all were dead. He said he stayed in the home
for several days with the bodies, before leaving, spending a couple of
nights at motels, and going to the movies.
Donovan's tie that binds is basketball
July 21, 2008
Anne Donovan is the dutiful daughter of two families
- by birth the youngest of eight in an Irish Catholic clan and by merit
a member of USA Basketball since she was 15.
This summer the twain shall meet: Her sisters and
brothers are going to Beijing to see her coach the U.S. women's Olympic
"They're all coming and I'm as excited about that as
the actual competition," Donovan says. "The most important things in my
life are my family and my basketball family."
She can be herself with either one. In the wider
world, that's not so easy. She is 6-8 - 15.4 inches taller than the
average American woman. Strangers stare when she walks into a room.
The same happens to the U.S. men's coach, but they
gawk at Mike Krzyzewski because he is famous, not because he's 6-1.
Donovan, 46, is famous in the literal sense - she's in the Basketball
Hall of Fame - but is rarely recognized save for inside WNBA arenas,
which is fine by her.
"I like to be under the radar," she says.
Trouble is it's hard to be under the radar when it's
hard to fit under the transom. Her reciprocal families help her past
that: She is lovingly accepted in the Donovan clan, where her siblings
range from 7-1 to 5-11, and on the teams she has played for and coached,
where height is a blessing, not a curiosity.
"She deals with all those things that all of us who
are too tall for ourselves deal with," says Kathy, her sister, who is
6-2½. "When you're growing up, it's hard to be different. A lot of our
closeness was banding together against the world. We didn't have to be
Except that Donovan is. She is the only unmarried
Donovan sibling and lives in Charlotte with Romeo, her epileptic cat. "I'm
a total introvert," Donovan says. "That's the label I put on myself."
But isn't coaching, by nature, a business for
"It's a conflict I've wondered about all my life,"
she says. "I never suspected I'd get into coaching. When I did, I loved
it. But the core of who I am, when I leave the court and go home, is a
pretty solitary life."
On the court she has a dozen daughters, the women of
the U.S. Olympic basketball team. They come from the WNBA, which will
suspend play for most of August so these 12 - and as many as 10 others
for other countries - can play in the Olympics.
"If she's an introvert, she's done an excellent job
coming out of her shell," says Olympic point guard Sue Bird, who also
played five seasons for Donovan with the Seattle Storm. "Anne is a real
players' coach. She's in tune. She knows when we need a day off or when
we need to go hard."
She is, in other words, a mother figure who knows
when to dole out tough love.
"That basketball family is the reason I got into
basketball," Donovan says. "So when I left my family I went into a
different family where I could be myself, expand a little bit and get
comfortable in my own skin. And I think that's what has been so
addicting for me. The basketball business for me, it's my own family, my
own way, and it's very comfortable. It's not a stretch at all."
Tragedy forges a bond
The Donovan clan - 25 strong, including sisters,
brothers, spouses and kids - gathered in a rented house on the Jersey
shore for their annual reunion this month. Donovan, who resigned as
coach of the Storm after last season, was free to come for the first
time in nine years.
"A lot of the conversation" among the siblings, she
says, "was about what to pack for China. It was great because as we said
our goodbyes, we knew we'd see each other again" soon.
The family reunions were started years ago by their
mother, Ann, who died 4½ years ago. Their father, Joseph, died when Anne
was 5. Their brother, Joseph, died at 44 in 1997, murdered in his sleep
in New Orleans.
"Four people were living in a house and all of them
were killed," Donovan says. "I don't like to go into it much except to
say it is really difficult, even now. Your life is forever changed.
"I didn't think it was possible for our family to get
much closer, but it certainly did tie us together even more. We share in
something that is deeply painful and never really goes away."
Prosecutors said a drifter used a stone from the
porch foundation to bludgeon Joseph. The housemates had allowed him to
stay for a while but he grew angry when asked to leave, according to
news reports at the time. Douglas Whitton was convicted on four counts
of first degree murder and sentenced to life.
"You never expect anything like that to happen in
your family," says Mary, another sister, who named her son Joseph. "It
makes you treasure what you have when you have it."
Court of Appeal of Louisiana
STATE v. WHITTON
STATE of Louisiana v. Douglas WHITTON.
September 27, 2000
Court composed of Chief Judge ROBERT J. KLEES, Judge
WILLIAM H. BYRNES, III, and Judge MIRIAM G. WALTZER.
Harry F. Connick, District Attorney, Jane L. Beebe,
Assistant District Attorney, New Orleans, Louisiana, Counsel for
Plaintiff-Appellee State of Louisiana.Christopher A. Aberle, Louisiana
Appellate Project, Mandeville, Louisiana, Counsel for Defendant-Appellant
By grand jury indictment dated December 11, 1997,
defendant, Douglas Whitton was charged with four counts of first degree
murder from which he pleaded not guilty. The trial court granted
defendant's motion to suppress the confession; but, this court granted
the State's writ application and reversed the trial court's ruling. State
v. Whitton, 98-1587 (La.App. 4 Cir. 8/12/98), unpub., writ denied
98-2413 (La.11/11/98), 728 So.2d 871. On February 22-26, 1999,
defendant was tried by a twelve-member jury that found him guilty as
charged on all four counts and recommended that he be sentenced to life
imprisonment on all four counts.1
On March 5, 1999, the trial court denied defendant's motion for new
trial; and after waiving all delays, defendant was sentenced in
accordance with the jury's recommendation to life imprisonment at hard
labor without benefit of parole, probation, or suspension of sentence.
This appeal followed.
STATEMENT OF THE FACTS
Jamie Rauch testified that on the night of October
16, 1997, she and her boyfriend met defendant on the Moonwalk. She
said that defendant told her he had done something bad. A day or two
later, she was at the Drop-in Center doing laundry when she saw a
newspaper article about four murders and was pressured to tell the
police where defendant was. She went with the police to the warehouse
where she, her boyfriend, and defendant were staying and convinced
defendant to come out to help her carry a bag of dog food at which point
the police arrested defendant.
David Smith, who was Ms. Rauch's boyfriend, testified
that when he saw defendant on October 16, 1997, defendant was carrying a
duffel bag. Smith said that he had known defendant for four months and
that on October 16, they hung out together and then stayed in an
apartment on Decatur Street. On the following afternoon, defendant
told Smith that he had done something wrong and was worried and scared.
That night, after defendant had dinner with someone else, he went to
the “squat,” a warehouse at Piety and Chartres, where Smith and Rauch
lived. Smith testified that the next day, a Saturday, defendant told
him that he, defendant, had struck the woman he had been living with
because she would tease him and pull his hair. He further told Smith
that he smashed the woman's skull and stabbed her with a steak knife and
a frog gig. Defendant then told Smith that he killed a roommate who
had come home and saw the woman's body when the roommate came after him
with a knife. Smith testified that defendant said that he beat the
roommate with a rock and that he then killed the woman's little boy and
husband. He told Smith that he killed the husband by hitting him in
the head with a brick and that he cut the throats of all four people.
He also told Smith that he took a check or checkbook from the house so
that he could feed himself and stay in a hotel.
Joie Cutrer testified that on October 17, 1997, he
received a call to proceed to 4026 Baudin Street. The police had
received a report about a missing man from his co-workers who had not
seen him for a week and who had gone to his home in an effort to locate
him. Cutrer noticed that the mail was still in the mailbox and that
the door was locked. He then walked down the alleyway where he saw a
partially open window that had a fan in it; and, as he got closer, he
saw flies at the window and encountered the smell of a decaying human
body. Cutrer got a ladder and climbed into the window after removing
the fan. He saw blood on the floor; and, when he entered a bedroom at
the rear of the house, he found the body of a white male on the floor
and the body of a white female on the bed. Cutrer then secured the
residence and called for assistance. When Sergeant Guidry from the
Crime Lab arrived, they reentered the house, which was in total disarray.
Cutrer said that there were hundreds of flies and maggots all over the
Stephanie Pellegrini testified that she worked at the
Stone Center with Owen Reeves and knew that he had been living on Baudin
Street for the past nine months with Gail and her son Joey. She stated
that it was unusual for Reeves to miss work for an extended period and
that when he did miss work, he would call. She further stated that in
October 1997 when Reeves had not shown up for a week and had not called,
she and another co-worker, Mickey Reyes, went to his house so that she
would have the address to give to the police. They saw that the mail
was still in the mailbox, and they walked down the alleyway at the side
of the house. As they got to the last or second to last window, they
saw flies and smelled a horrible odor coming from the house; and, they
used a neighbor's phone to call the police. Both Ms. Pellegrini and
Reyes stated that they had last seen Reeves on the previous Friday.
Pat Bailey, shop supervisor at the Stone Center,
testified that he had last seen Reeves on the previous Saturday, October
11. Records showed that Reeves arrived for work at 8:05 a.m. and left
at 12:18 p.m. Bailey stated that Reeves was alone when he left work that
day and that Reeves was on foot. Bailey testified that Reeves said he
was going to a meeting.
Xavier Bowie, an employee of the Stone Center,
testified that he occasionally visited Reeves at his home, which he
described as neat and clean. He further testified that in October
1997, he went to Reeves' home on Tuesday afternoon and Wednesday morning
when Reeves had not shown up for work. He said that other co-workers
went to Reeves' home on Thursday; and on Friday when Reeves had not
called, Bowie said that he told his boss to call the police because it
was not like Reeves to miss days and not call. He stated that he had
last seen Reeves the previous Saturday and that he was supposed to take
him home but did not because Reeves was with a customer. Bowie
testified that when he went to the house on that Wednesday morning to
look for Reeves, he saw the mail and the curtains moving. He walked to
the side of the house and saw the fan blowing. He did not notice any
tears or bloodstains on the curtains.
Marion Legrand testified that she taught Joey
Whitehead at A. D. Crossman Elementary and that the last time she saw
him was October 10, 1997.
Julie Chen testified that she worked at Sweet's Inn
Motel on Tulane Avenue, and she identified a registration card from the
motel. The card was dated October 10, 1997, 1:15 a.m.; and, it was in
the name of Douglas Whitton. She stated that she did not know when he
checked out of the motel.
James Brown, who lived at 4034 Baudin, testified that
Owen Reeves, Gail Coulon, and her son Joey Whitehead had lived next door
to him for a couple of years. He remembered when two people from the
Stone Center were looking for Reeves and that he gave them permission to
walk down his driveway to look at the back part of the house. He
stated that they called to him and pointed out the flies on the window
and the smell. He called the police; and, when the officer arrived,
he lent the officer a ladder to climb into the window. Brown testified
that two men, one of whom was tall and one of whom was fat, lived with
Reeves, Coulon, and her son. He identified defendant as the fat one.
Craig Peel, who lived across the street from 4026
Baudin, testified that he used to walk Joey Whitehead to school so as to
save his mother a trip and when he did not see them, he did not pay any
mind. He further testified that in the days before the bodies were
found, he saw defendant at the house, once with the door open and
watching television and the other time with a green duffel bag. He
thought that the day he saw defendant with the duffel bag was on the
Wednesday before the Friday that the police found the bodies. He did
not recall seeing or hearing anything unusual, although he did notice
the mail had not been picked up.
Rainey Lutyhe testified that she lived in one half of
a shotgun double and that Reeves, Ms. Coulon, her son, and defendant
lived in the other half. She said that Reeves had lived there for a
couple of years and that Ms. Coulon and her son had lived there for
about six months. With regard to the Saturday before the bodies were
discovered, she did not recall hearing any loud noises, screaming, or
struggling from next door. She stated that this was unusual because it
usually a noisy house where there was always screaming and hollering.
She further stated that she left around 11:00 a.m. that Saturday to go
to a wedding. She did not see defendant that day or on the following
days. She also did not see or hear any of the other occupants, but she
did hear footsteps at night. She stated that she began to smell a
terrible smell on the following Tuesday and thought it was dead rats.
Detective John Ronquillo testified that he and
Detective Marco Demma proceeded to 4026 Baudin and found four bodies.
He stated that the front room was in disarray, and a blood-stained knife
wrapped in newspaper was found in that room. In the second room, he
saw a child's desk, a bed, and a dresser containing children's clothing.
He also found a frog gig in that room. In the third room, he found
the bodies of Gail Coulon and Owen Reeves. Ms. Coulon, who was lying
on a bed, was nude from the waist down; and, it appeared that she had
sustained a severe head injury and that her throat was cut. She also
had what looked like prong marks in her chest. Reeves' body was next
to the bed, and he had sustained a severe laceration to his neck and had
been beaten about the head. Ronquillo said that the wounds on Reeves'
head looked like they were made with a rock that was found in the front
room. He also found a cinder block in the third room. In the kitchen,
he found a bent and bloody knife in the sink. The last room was a
utility room, but it had two beds in it. On one of the beds was the
body of Joseph Donovan who appeared to have sustained a severe head
trauma and whose throat had been cut. Ronquillo also found the body of
nine year old Joey Whitehead wrapped up in a quilt. He had two stab
wounds to the chest, and his throat had been cut.
Louis Schwander testified that he worked with Joseph
Donovan at Orleans Sheet Metal Works and Roofing. He said that the
last time he saw Donovan was a Friday and that Donovan was supposed to
come to work the next day but did not appear.
Chang Tsui Vu testified that she worked at the
Century Hotel on the Westbank Expressway in Gretna, and she identified a
guest registration card in defendant's name from October 15, 1997.
Dr. Richard Tracy performed the autopsies on the four
victims. He testified that Ms. Coulon died of blunt force injuries to
the head and that her body was in advanced decomposition. He also
found five stab wounds in her chest, and he stated that these wounds
were inflicted after death because there was no bleeding. She also had
a cut across the front of her neck that was consistent with postmortem
injury. He testified that her head injuries occurred on the left side
and were inconsistent with their having been given while she lay face
up in bed. As to Donovan, Tracy stated that he died from blunt force
injuries to the head and that there appeared to be thirteen individual
blows. He further stated that Donovan, who was also in a state of
advanced decomposition, was struck in three patterns behind the left ear,
in the forehead, face and jaw, and in the left temple area. Donovan
also had a shallow slash across the front of the neck. Tracy testified
that Joey Whitehead was stabbed four times and that the wound to the
neck was the fatal one. As to Reeves, Tracy testified that he died
from blunt force injuries to the head. One injury was to the back of
the head, and one was to the right temple. Reeves also had a slash
across the front of the neck. With regard to all four victims, Tracy
found a heavy population of maggots.
Malinda DuRousseau testified that she lived three
doors down from the murder scene and that she knew Ms. Coulon, her son,
and Reeves. She also knew that defendant was living with them. She
testified that the last time she saw her neighbors was on a Friday and
that on the Tuesday morning subsequent to that Friday, defendant came to
her house. She said that he asked her if she was James' girlfriend and
that she told him that James was her sister's boyfriend. She further
testified that defendant said, “Okay” when she told defendant that her
sister and the sister's boyfriend would be back in a little while. She
stated that he then returned to his house. She also stated that
defendant was the only person she saw coming to and going from the house
until Wednesday in the week before the police found the bodies. She
stated that the last time she saw Reeves was on Friday afternoon and
that he was carrying a bag of groceries. She last saw Ms. Coulon on
Friday morning, and she last saw Joey on Friday evening when he was
playing with her daughter and nephew.
Jimmy Benz testified that Joey Whitehead was his best
friend and that they played together every day. On the Friday that he
last saw Joey, Jimmy stated that he got home from school at 3:30 and
that he, his cousin, and Joey played basketball in Joey's backyard until
about 5:00 2
. He said they played for two to three hours until the mosquitoes got
bad and that Joey went inside. Jimmy and Jennifer, his cousin, started
to walk home when they heard arguing; and, he told Jennifer that they
should see if Joey was in trouble. While Jennifer stayed in the front
of the house, Jimmy walked up to the kitchen window where he heard Ms.
Coulon and Reeves telling defendant to get out of the house. He stayed
there for a about five minutes, but ran off after Jennifer said that
they were going to get into trouble. Jimmy testified that the next
morning, he went over to Joey's house at 11:00 and knocked on the door.
Jimmy further testified that he heard “boom, boom, boom,” and that
defendant then answered the door. Defendant told James that they had
gone to Mississippi and then slammed the door shut. He went back to
Joey's house at 4:00, and he testified that the same happened as
happened when he went to Joey's earlier that day. He did not go back
to Joey's until Monday afternoon when he got back from school. He and
Jennifer went to Joey's where he knocked on the door, and Jimmy stated
that when he knocked the door opened a little bit. James looked inside
and saw an Indian curtain separating the front room from Joey's room.
He said that the curtain, which was blue, had little red dots on it.
He then heard “boom, boom, boom” again; and, defendant came to the door
and repeated that everyone was in Mississippi. He and Jennifer ran
home; but, he went back the next day with Jennifer and his mother to
return a toy that belonged to Joey. Jimmy testified that he went to back
door instead and placed the toy on the step and that he heard the
booming sound again. He said that defendant opened the door and
repeated that everyone was in Mississippi. Defendant shut the door,
and he ran back to the front of the house where his mother and Jennifer
were. He did not go back to the house again.
Jennifer DuRousseau testified that he knew and played
with Joey Whitehead with her cousin, Jimmy Benz. She said that after the
last time she and Jimmy played with Joey and he went in his house, she
and Jimmy heard hollering coming from inside the house. She stayed at
the front of the house while Jimmy went to the side of the house. They
then went home, and she and Jimmy went back to Joey's on the following
Monday. Jimmy knocked on the door which then flew open. She saw a
blanket with “red stuff” on it, and she said that defendant ran to the
door and told them that everyone was in Mississippi. After defendant
slammed the door shut, she and Jimmy went home. They, along with
Jimmy's mother, went back to Joey's house the next day so that Jimmy
could put a toy on the back steps. She said that she stayed by Mr.
Brown's gate while Jimmy put the toy on the steps. She did not see or
hear anything else.
Marlene Maher, Jimmy's mother, testified she knew
Gail Coulon, Owen Reeves, and Joey Whitehead. She stated that
defendant moved into 4026 Baudin in August of 1997 and that Joe Donovan
moved in about three or four weeks after that. She identified the
piece of stone found inside the house as having been part of a column on
the front porch. On the last Friday that she saw Ms. Coulon, she said
that they made plans for Ms. Maher to tutor Joey in math on Saturday
morning. On that Saturday morning, she sent Jimmy over to get Joey at
around 11:00; but, Jimmy came back home alone. He again came back
without Joey when she sent him back to Joey's later that day. She did
not see any of her neighbors on subsequent days; and, on the following
Tuesday, she, Jimmy, and her niece went over to Joey's to return a toy.
As her son placed the toy on the back steps, she heard defendant yell
at her son that he did not want him to go back down there and that
everyone was in Mississippi. She hollered back to her son to tell
defendant to shut up and that he was just putting a toy on the step.
She saw defendant the next day sitting on the porch with a green duffel
bag. She saw him at around 5:30 pick up the bag walk toward Pierce
Street, and this was the last time she saw defendant.
Edward Delery, head of the Forensic Light Unit of the
Crime Lab, testified that he went to crime scene to look at various
blood print patterns that were on objects in the house, particularly one
on the washing machine. He took photographs and used an electrostatic
dust lift and a rubber lift to get impressions of the blood prints from
various places in the house.
Glen Burmaster of the Latent Fingerprint Unit
testified that many of the prints were not suitable for identification.
He also stated that none of the prints that were suitable for
comparison, including the bloody print found on the washing machine,
matched defendant's prints. He did not have prints from any of the
victims to use for comparison due to the decomposition of the bodies.
Joseph Tafaro analyzed hairs found at the scene with
those of the victims and defendant; and, he concluded that hairs found
on two shampoo bottles were those of defendant and that those hairs had
minute traces of blood on them. He said that hairs on the bent steak
knife and a brown-handled knife were either Gail Coulon's or Joey
Whitehead's. He also found microscopic traces of blood on hair that
was found in the warehouse where defendant was arrested. He could not
type any of the blood.
Paula Eady, assistant vice-president of Hibernia
National Bank, testified that Owen Reeves had an account with Hibernia.
She identified four checks that had been written on Reeves' account,
and all four checks were made payable to defendant. She stated that
the checks were cashed at the bank. Two checks were cashed on October
13, 1997; and, the other two were cashed on October 14 and 15.
James Dupuis was qualified as an expert in document
examination. He took a handwriting exemplar from defendant, and he
compared it with the signature on the motel registration cards. He
found that it was highly probable that they were of common authorship.
He also compared the exemplar with the handwriting, including the
signature of Owen Reeves, on the four checks. He concluded that all
four checks were of common authorship with the exemplar.
Chester Meek, who was qualified as an expert in
forensic entomology, testified that forensic entomology involved the
study of what species of insect come in at the beginning of the
decomposition process and those species that are found in the later
stages of decomposition. He further testified he received several
containers of insects that were taken from the bodies of the four
victims. He studied the insects and concluded that the oldest larvae
were six days old which meant that the insect eggs were laid on the
Saturday before the bodies were found. He stated that flies do not
become active before dawn. He admitted that he could not give the
exact hour of death and could not say whether the bodies were available
to the flies before dawn on that Saturday.
Detective Marco Demma testified that he arrived at
4026 Baudin at 10:24 a.m. on October 17 and that he found the shotgun
home in disarray. He saw a blue blanket or quilt covering the opening
between the first room and the next room, which was Joey Whitehead's
bedroom. He also saw a knife on the dresser in Joey's room and
noticed that the mattress from Joey's bed was in the front room. He
found a gig pole on a love seat in Joey's room and saw a blood trail
that looked like a drag mark extended from the front room to the second
room and then into the hallway. The bloodstains had a white cleansing
powder sprinkled over them; and, he found household cleaning products,
as well as personal cleaning products, in the bathroom. There was a
mop in the toilet, and there was blood on the floor. Demma went to the
next room, a bedroom, where he found the bodies of Gail Coulon and Owen
Reeves. Ms. Coulon's body was on the bed, and Reeves' body was on the
floor. He saw blood on the doorway leading from the bedroom to the
kitchen. He found a bent, bloodstained knife in the kitchen sink. He
then went into the last room of the house where he found the bodies of
Joey Whitehead, wrapped in a bedspread, and Joseph Donovan, who was clad
in only his underwear, lying on a mattress. There was blood spattered
on the wall, and a knife was found on the mattress after Donovan's body
was removed. A fourth knife was found in the front room underneath
Demma testified that after speaking with neighbors,
defendant was developed as a suspect; and, on October 18, 1997, he was
contacted by Detective Michael Eskine who had information on defendant's
whereabouts. He went to an abandoned warehouse at Piety and Chartres
where he saw defendant leaving with a female subject. Demma searched
the warehouse and found a green duffel bag, some cut hair, and a knife.
Defendant was placed under arrest and informed of his rights. Demma
stated that defendant appeared to understand his rights and that again
he informed defendant of his rights at the homicide office. Defendant
signed a waiver of rights form, and Demma testified that he did not
suggest a statement to defendant. He further testified that he did not
intimidate, force or threaten defendant into making the statement.
Demma stated that defendant first indicated that he did not remember
much and that because the people were dead when he woke, he must have
killed them. Defendant also said that he noticed that Reeves was not
at home and knew that because Reeves would connect him to the deaths, he
would have to kill Reeves. Demma testified that after defendant was
confronted with information showing that he was lying, defendant said
that he could visualize himself strike and kill Gail Coulon. He
refused to say anything about Joey or Donovan. Demma asked defendant
if he were willing to give a recorded statement, and defendant agreed.
Demma stated that as they were setting up the recording equipment, he
learned about defendant's statements to David Smith. The statement
taken from defendant was videotaped, and the videotape was played for
the jury. He denied prodding defendant with information taken from the
statement given by Smith to Detective Ronquillo.
In the confession defendant stated that he “flew off
the handle.” He further stated that he had never gotten along with
Gail Coulon and that she made fun of him and stole from him. He
remembered her looking up at him and said that he hit her with his hands.
He also stated that he “sliced” the victims and poked them with a frog
gig to make sure they were dead. He could not remember doing anything
to Donovan (referred to as J. D.) or to Joey; but, he recalled cutting
Donovan's throat because he heard sounds coming from Donovan. He
recalled Reeves walking in and asking him where Gail and Joey where.
He also recalled Reeves asking why a table was on its side; and when
Reeves went over to investigate after defendant said that there was a
mouse in there, defendant hit Reeves on the head with a piece of marble.
He dragged Reeves' body into Gail's room and put the body beside the
bed. He said that Donovan's body was in the back on the mattress and
that Joey's body was by the washing machine. He also admitted writing
and cashing checks and staying in motels on the Westbank. Defendant
stated that when he ran out of money he met with his “kids” by the river.
He said that he met David Smith and the others when he worked as a
security guard at the Drop-in Center. He admitted that he told Smith
what had happened.
Reverend Stan Helton testified that defendant worked
for him at the Church of Christ and that defendant said he had a
drinking problem. He helped get defendant into Bridge House where
defendant stayed until August 8, 1997 and that he advised against
defendant moving in with Reeves and Ms. Coulon.
Sarah Smith also testified about defendant's working
at the church starting in January 1997 and said that he worked with the
children and painted around the church.
A review of the record shows no errors patent.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant complains
that the trial court erred in denying him his fundamental right to
present a defense. He argues that he should have been allowed to
present the testimony of Dr. Sarah Deland and Dr. Marc Zimmerman that he
suffered from blackouts caused by substance abuse in order to challenge
the probative value of his confession. He asserts that he intended to
use this evidence to show that he was being truthful when he initially
told the police that he did not recall committing the murders of Gail
Coulon, Joey Whitehead, and Joseph Donovan and that the facts he related
in his confession had been supplied to him by Marco Demma prior to and
during the taping of the confession.
Defendant filed a motion to suppress the confession
which the trial court granted on the grounds that defendant had invoked
his right to counsel. This court reversed that ruling, and the Supreme
Court denied writs. State v. Whitton, 98-1587 (La.App. 4 Cir. 8/12/98),
unpub., writ denied 98-2413 (La.11/11/98), 728 So.2d 871. Prior to
trial, defendant filed a motion in limine seeking to introduce certain
medical evidence without the plea of not guilty by reason of insanity.
The trial court denied the motion, stating in a written judgment as
The Defendant's ex parte motion in limine to allow
the introduction of certain medical evidence without the plea of not
guilty by reason of insanity is hereby denied. There is no evidence to
suggest the statement given to the arresting officers by the defendant
is inherently unreliable. The defense is attempting to circumvent the
real issue, namely, the admissibility of defendant's statement which was
previously reviewed by the court. In fact, in a ruling by the Fourth
Circuit, State v. Douglas Whitton, (writ 98-K-1587), to determine the
admissibility of defendant's statement the court stated that “their
review of the videotaped interrogation indicated that defendant's
statements were clear and unambiguous.” A decision this court cannot
The court considered La. C.Cr.P. art 703[sic], which
establishes, that in order to preserve defendant's constitutional rights,
“the State bears the burden of proving that defendant's mental defect or
diminished mental capacity did not preclude defendant from giving a
voluntary and knowing confession, which this court is convinced does not
exist in the present case.
Defendant's emergency writ application (99-K-0437) to
this court was denied. Defendant filed a writ application (99-KK-0501)
with the Supreme Court; and, this writ application was denied with
three justices dissenting. Two of the dissenting justices stated that
they would grant the writ application and issue an order allowing
defendant to present psychiatric evidence of any substance induced
memory blackout at the time of his interrogation and confession in
accordance with La. C.Cr.P. art. 703, subject to a limiting instruction
to the jury that it was not to consider this evidence as having any
bearing on defendant's mental capacity at the time of the offense.
The denial by this Court and the Supreme Court of
defendant's emergency writ application on this issue does not preclude
review of the issue in this appeal. A denial of supervisory review is
merely a decision not to exercise the extraordinary powers of
supervisory jurisdiction and does not bar consideration of the merits of
the issue in which supervisory review has been denied when an appeal is
taken from the final judgment. State v. Wessinger, 98-1234
(La.5/28/99), 736 So.2d 162; State v. Fontenot, 550 So.2d 179
La. C.Cr.P. art. 651 provides that when the defendant
is tried upon a plea of “not guilty,” evidence of insanity or mental
defect at the time of the offense shall not be admissible. La. C.Cr.P.
art. 703(G) provides:
When a ruling on a motion to suppress a confession or
statement is adverse to the defendant, the state shall be required,
prior to presenting the confession or statement to the jury, to
introduce evidence concerning the circumstances surrounding the making
of the confession or statement for the purpose of enabling the jury to
determine the weight to be given the confession or statement.
A ruling made adversely to the defendant prior to
trial upon a motion to suppress a confession or statement does not
prevent the defendant from introducing evidence during the trial
concerning the circumstances surrounding the making of the confession or
statement for the purpose of enabling the jury to determine the weight
to be given the confession or statement.
Defendant cites State v. Van Winkle, 94-0947
(La.6/30/95), 658 So.2d 198, in support of his argument that the trial
court erred in refusing to allow him to present medical testimony in
order to challenge the reliability of his confession. In Van Winkle,
the defendant was convicted for the murder of her son; and, at trial
she sought to introduce evidence of, among other things, her mental
state when she gave various statements to the police. The Supreme
Court, quoting Article 703(G), stated that if the statements were used,
the defendant was entitled to introduce “evidence concerning the
circumstances surrounding the making of the confession or statement for
the purpose of enabling the jury to determine the weight to be given to
the confession or statement.” Id. at p. 8, 658 So.2d at 203.
Although Article 651 excludes evidence of insanity or
a mental defect in the absence of a plea of not guilty by reason of
insanity, it appears that under Article 703 and Van Winkle some evidence
of mental defect may be admissible when it concerns the circumstances
surrounding the making of a confession in order to enable the jury to
determine the weight to be given the confession. Hence, it appears
that the trial court erred in denying defendant's motion.
In order for an error to be harmless, it must be
shown beyond a reasonable doubt that the complained-of error did not
contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). As a trial error, as opposed to a
structural error, it may be quantitatively assessed in the context of
the other evidence presented. Arizona v. Fulminante, 499 U.S. 279, 111
S.Ct. 1246, 113 L.Ed.2d 302 (1991). The inquiry is not whether in a
trial that occurred without the error a guilty verdict would surely have
been rendered, but whether the guilty verdict actually rendered in the
trial was surely be unattributable to the error. Sullivan v. Louisiana,
508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
The State points out that defendant did not proffer
any of the psychiatric testimony unlike the defendant in Van Winkle.3
However, the record has been supplemented with the testimony of Dr.
Sarah Deland, one of defendant's proposed witnesses regarding the
reliability of the confession, who testified on defendant's behalf
during the penalty phase of the trial. She diagnosed him as suffering
from substance induced persisting amnestic disorder which meant that
there would be periods where he would not remember even when he was not
acutely intoxicated. During cross-examination by the State, Dr. Deland
read an excerpt from defendant's confession about the killing of Owen
Reeves. She described his statement as a memory of an incident with
some holes in it. On redirect, she was asked the following:
Q. Now the prosecutor wanted you to read this
statement or parts of this statement and you read just a few parts of it,
Q. Do you know whether or not before giving this
statement he spent two hours, three hours, or six hours with the police
rehearsing answers? Do you know that?
A. No, I don't know that.
Q. Can you say for a fact that these were answers he
definitely gave with no coaching or no advice or not being shown
evidence or anything? Can you say that?
A. No, I don't know anything else about the statement
except the statement.
Q. Do you know what possibly could have precipitated
the giving of this statement?
A. I would have no idea.
Assuming that Dr. Deland's testimony would have been
the same during the guilt phase of the trial, it appears that the
exclusion of her testimony was harmless error because her testimony
shows that she knew nothing with regard to the giving of the statement
or its reliability. It must be noted that there is nothing in the
record as to what the other proposed medical witness, Dr. Marc Zimmerman,
would have concluded with regard to defendant's mental state and the
reliability of the confession, although the minute entry from the
penalty phase indicates that he testified. But it also appears that
the exclusion of his testimony would be harmless when examined in
context of the other evidence presented at trial. Prior to his arrest,
defendant admitted his guilt to David Smith; and that statement to
Smith was very similar to his later confession to the police.
Therefore, the exclusion of the medical testimony concerning defendant's
blackouts as affecting the reliability of the confession was harmless
error. This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, defendant
complains that the trial court erred in denying his request to admonish
the jury regarding the State's blatant misrepresentations of important
evidence during closing rebuttal argument.
Defendant objected when the prosecutor made the
And you can-the Defense may want you to believe that
there was someone else running around October the 10th, 1:15 a.m. in the
morning registering under the name of Douglas Whitton from Texas. It
was this gentleman. It was this man right here, Douglas Whitton. And
that's the crucial moment, isn't it? That's the crucial moment when
Douglas Whitton had just been asked to leave this family's home for
whatever reason and check into the Sweet's Inn. At that moment, at 1:15
a.m. in the morning, that's when he makes the decision.
Defendant's immediate objection was overruled; and,
at the conclusion of closing arguments, defendant moved for a mistrial
on the grounds that the State intentionally, purposefully, and
maliciously misrepresented to the jury that defendant was at Sweet's Inn
on Friday night and Saturday morning because it fit the theory that
defendant had been excluded from the house. Defendant pointed that
1:15 a.m. would have been in the predawn hours of Friday as opposed to
the predawn hours of Saturday. Defendant also moved for an instruction
to the jury that 1:15 a.m. on October 10 was in the predawn hours of
Friday, not Saturday. The trial court denied the motion.
La. C.Cr.P. art. 774 provides:
The argument shall be confined to the evidence
admitted, to the lack of evidence, to conclusions of fact that the state
or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state's rebuttal shall be confined to answering
the argument of the defendant.
In State v. Langley, 95-1489, p. 7 (La.4/14/98), 711
So.2d 651, 659, the Supreme Court stated:
In any event, prosecutors are allowed broad latitude
in choosing closing argument tactics. See, e.g. State v. Martin, 539
So.2d 1235, 1240 (La.1989). Although under La. C.Cr.P. art. 774
closing argument must be “confined to the record evidence and the
inferences which can reasonably drawn therefrom,” both sides may still
draw their own conclusions from the evidence and convey such view to the
jury. State v. Moore, 432 So.2d 209, 221 (La.1983), cert. denied 464
U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). “Before allegedly
prejudicial argument requires reversal, the court must be thoroughly
convinced that the jury was influenced by the remarks and that such
contributed to the verdict.” State v. Taylor, 93-2201, p. 21
(La.2/28/96), 669 So.2d 364, 375; State v. Jarman, 445 So.2d 1184, 1188
(La.1984). We also ask whether the remarks injected “passion,
prejudice or any arbitrary factor” into the jury's recommendation. Moore,
432 So.2d at 220.
Defendant is complaining only about the trial court's
refusal to give the requested admonishment or instruction and is not
complaining about the denial of his motion for a mistrial. In that
requested admonishment/instruction, defendant wanted the trial court to
instruct the jury that 1:15 a.m. on October 10 was a Friday morning and
not a Saturday morning. This requested admonishment/instruction would
have amounted to a factual finding by the court, and as such it is
prohibited by La. C.Cr.P. art. 772 which provides:
The judge in the presence of the jury shall not
comment upon the facts of the case, either by commenting upon or
recapitulating the evidence, repeating the testimony of any witness, or
giving an opinion as to what has been proved, not proved, or refuted.
Moreover, it does not appear that the State's
erroneous statement that 1:15 a.m. on October 10 was a Saturday morning
rather than a Friday morning influenced the jury and contributed to the
verdict considering all of the other evidence of defendant's guilt,
especially his confession. This assignment of error is without merit.
Accordingly, for the reasons expressed above the
convictions and sentences of defendant Douglas Whitton are hereby
CONVICTIONS AND SENTENCES AFFIRMED.
1. Trial had
been set previously on November 16, 1998; but, a mistrial was declared
when a potential juror watched a television news program that had a
report about the trial.
2. On cross-examination,
he stated that they stopped playing at 8:00.
3. There is
no reference to the proffered testimony in the Supreme Court's opinion,
but the opinion from the Fifth Circuit details the proffered psychiatric
testimony. State v. Van Winkle, 93-843 (La.App. 5 Cir. 3/16/94), 635
KLEES, Chief Judge.