Opposition — Collum v. Louisiana

preme Court, U. 8

FILED

In the RO , IR. Ct ERK: ||

Supreme Court of the Anited Staves

OCTOBER TERM, 1978

NO. 78-1715

DONNIE FRANKLIN COLLUM

AND

SCOTTY LYNN COLLUM

Petitioners

versus

STATE OF LOUISIANA

Respondent

RESPONSE IN OPPOSITION TO A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

WILLIAM GUSTE

Attorney General

State of Louisiana

FRANCIS DUGAS

District Attorney

17th Judicial District

WALTER K. NAQUIN, JR.

Assistant District Attorney

17th Judicial District

Post Office Box 431

Thibodaux, Louisiana 70301

_____ ES

A B Letter Service, Inc., 327 Chortres St., New Orleans, La. (504) 581-5555

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Arguments in Opposition to Petitioner’s

peer ert eee eee

1. The Louisiana Supreme Court Decision

of State of Louisiana in the interest

of Andrew Dino should not be applied

retroactively. Therefore, that decision

is inapplicable to the present case. ........

. Whether a juvenile can knowingly and

intelligently waive his right to counsel,

and his right against self-incrimination,

is a question of fact to be determined by

a review of the “Totality of Circumstances’’.

State Vs. Hill, 354 So 2d 186 (La. 1977);

West Vs. United States, 399 F. 2d 467

Ba AS ie

ee ee awn b cea beees

ee es erece o's

PAGE

11

12

ii

LIST OF AUTHORITIES

Fare Vs. Michael C., 99 S. Ct. 3 (1978)..........

Johnson Vs. New Jersey, 384 U.S. 719

86 Sup. Ct. 1772, 16 L.Ed. 2d 882 (Sup. Ct.

RR A ONE ee ey eee

Miranda Vs, Arizona, 384 U.S. 436 (1966).......

Oregon Vs. Hass, 420 U.S. 714, 95 S. Ct. 1215

TIE sci boca ts casene

Oregon Vs. Mathiason, 429 U.S. 492, 97 S.Ct.

FRE BO Ee, WG. Se TOO CARTE) 6 cee ce ncesecccs

State Vs. Evans, 249 La. 861, 192 So 2d

Se AW, vcne aa list

State Vs. Hall, 350 So 2d 141 (La. 1977)........

State Vs. Hill, 354 So 2d 186 (La. 1977) ........

State of Louisiana in the Interest of Dino,

ST 7 ee

West Vs. United States, 399 F.2d 467

NS ae re his a ass yi

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 78-1715

DONNIE FRANKLIN COLLUM AND

SCOTTY LYNN COLLUM

VERSUS

STATE OF LOUISIANA

REPLY BRIEF IN OPPOSITION TO WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF LOUISIANA

The State of Louisiana, respondent herein, prays that

this court deny the issuance of a Writ of Certiorari, to re-

view the judgment and decision of the Supreme Court of

the State of Louisiana affirming the convictions and uphold-

ing the validity of the guilty pleas of Donnie Franklin Collum

and Scotty Lynn Collum for four counts of second degree

murder in the Seventeenth Judicial District Court, Lafourche

Parish, Louisiana.

STATEMENT OF FACTS

On May 27, 1977 Jessie Collum, his wife, Lenora, and

their children, Jeffrey, age 9, and Anna, age 6, were killed in

the Collum trailer home located in the Four Point Heights

subdivision, Lafourche Parish, Raceland, Louisiana. All of

these individuals had been shot several times and Jessie

Collum had also been stabbed. Two days later on May 29,

1977 Donnie Collum, age 15 and Scotty Collum, age 14, the

sons of Jessie Collum by a prior marriage were stopped by

police authorities in Benson, Arizona. Both youths admitted ©

to the Benson, Arizona authorities that they had taken the

2

automobile without the knowledge or permission of Jessie

Collum. As a result, the vehicle was left in Arizona and the

authorities returned Donnie Collum and Scotty Collum to

their mother, Mrs. Peggy Mendoza in Victorville, County of

San Bernadino, California.

On Wednesday, June 1, 1977 the bodies of the Collum

family were discovered. On this same date the Lafourche

Parish Sheriff's Office sent out nation wide bulletins for the

location of the Cadillac automobile, and also seeking infor-

mation concerning Donnie Collum and Scotty Collum. On

June 3, 1977 the San Bernadino County Sheriff's Office

notified the Lafourche Parish Sheriff's Office of the loca-

tion of both Donnie and Scotty Collum. They further

advised that the Cadillac authomobile was in Benson, Ari-

zona and that both individuals had admitted taking the

automobile without the knowledge or permission of Jessie

Collum.

At approximately 4:30 p.m. Central time, (2:30 p.m.

Pacific time) warrants were issued in Lafourche Parish, 17th

Judicial District Court for the arrest of Donnie Collum and

Scotty Collum for the theft of the 1974 Cadillac. The affi-

davits supporting these warrants were filed into evidence in

these proceedings. The information concerning the arrest

warrants was telephoned from Lafourche Parish to the San

Bernadino County Sheriff's Office. Sergeant Charles Sodaro,

Detective Robert Woodrum, and Detective Dennis Searcy

in response to this information proceeded to the trailer

park where Donnie and Scotty Collum were apprehended.

Mrs. Peggy Mendoza, the mother of Donnie and Scotty

Collum, was present at the time of the arrest. She was ad-

vised that they were being taken into custody for Louisiana

authorities on the basis of a warrant for auto theft. Detec-

tive Woodrum read the Miranda warnings to both Donnie

3

and Scotty Collum from a Miranda card that he carried on his

person. Both individuals advised that they understood their

rights. Neither of the two appeared to be under the influence

of alcohol or drugs at this time. When they arrived at the

Victorville Sheriffs Office sub-station they were placed in

separate interview rooms.

At approximately 3:00 p.m. on June 3, 1977, Detective

Sodaro and Woodrum interviewed Donnie Collum. During

this interview, the defendant admitted the car theft. He was

reminded of his Miranda rights a second time and then told

that his father had been shot to death. At this time he be-

came very nervous. The interview was therefore terminated

at approximately 3:30 p.m.

At approximately 4:00 p.m. on June 3, 1977, Detective

Woodrum and Sodaro interviewed Scotty Collum. They re-

minded him of his Miranda rights. At this time Scotty gave

a complete statement concerning his participation and

Donnie’s participation in the quadruple murders which had

occurred in Lafourche Parish. After this, the police officers

commenced to take a taped interview from Scotty which

lasted approximately 50 minutes. This taped statement was

also offered in evidence at the hearing on the Motion to

Suppress.

At approximately 8:00 p.m. on June 3, 1977, Sergeant

Sodaro and Detective Woodrum again spoke to Donnie

Collum. Donnie had requested to speak to the officers.

Prior to this conversation, he was again reminded of his

Miranda rights; indicated that he understood them, and

consented to talk to the officers. At his request, he was

permitted to hear a small portion o: the taped statement that

Scotty Collum had previously given to the officers. At

8:11 p.m. Donnie Collum commenced a taped statement

4

which was concluded at 8:40 p.m. This taped statement of

Donnie Collum has been filed into evidence in these pro-

ceedings.

Later that night Major Norman Diaz and Detective Dennis

Rodrigue of the Lafourche Parish Sheriff's Office arrived in

Victorville, California. They proceeded immediately to the

detention center where Major Diaz spoke with Mrs. Mendoza.

Major Diaz and Detective Rodrigue then proceeded to inter-

view both Donnie and Scotty Collum. These interviews were

also taped, and have also been offered into evidence in these

proceedings. On July 18, 1977 a Motion to Suppress the

taped statements was filed by the defendant herein and

this matter was heard on August 30, 31, and September 7,

1977. On December 29, 1977 the Motion to Suppress filed

by the defendant was overruled and dismissed. Subsequent-

ly, on February 24, 1978, the defendant Donnie Collum

entered a plea of guilty to four separate counts of second

degree murder. The Court sentenced the defendant to four

life sentences without the benefit of probation or parole

for a period of forty years on each sentence, all of the

sentences to run consecutively. The pleas of guilty were

entered with the stipulation and understanding that the

defendant reserve his right to appeal the ruling of the Motion

to Suppress the confessions.

5

ARGUMENTS IN OPPOSITION TO PETITIONER’S

APPLICATION FOR WRITS

1.

THE LOUISIANA SUPREME COURT DECISION

OF STATE OF LOUISIANA IN THE INTEREST OF

ANDREW DINO SHOULD NOT BE APPLIED RETRO-

ACTIVELY; THEREFORE, THAT DECISION IS IN-

APPLICABLE TO THE PRESENT CASE.

A.

On June 15, 1978 the Louisiana Supreme Court announc-

ed its decision in State of Louisiana in the Interest of Dino,

359 So 2d 586 (1978). By that decision the Louisiana Su-

preme Court decided that a confession of a juvenile was not

admissible in evidence unless the juvenile actually consulted

with an attorney or an adult before waiving his right to si-

lence. The quadruple murders for which Donnie and Scotty

Collum were arrested occurred on May 27, 1977. Both

Donnie and Scotty Collum entered guilty pleas on February

24, 1978, approximately four months prior to the Dino de-

cision. The guilty pleas were entered with the reservation of

rights to appeal the ruling on the motion to suppress the con-

fession. Their appeals were returnable to the Louisiana Su-

preme Court on May 2, 1978.

The State of Louisiana readily concedes that the subse-

quent guidelines announced in Dino were not compiled with

in the present case. No attorney or parent actually consult-

ed with the defendants during the interrogation. However,

the State submits that the Dino decision should not be appli-

ed retroactively and the present case should be governed by

6

the ‘“‘totality of circumstances” test; the rule of law in

Louisiana and in the Federal Courts prior to Dino.

The present crime, the present confessions, and the

present guilty pleas were entered prior to June 15, 1978,

the effective date of the Dino decision. This Court and the

Louisiana Supreme Court have held in similar cases that such

decisions would be given prospective application only and

would not apply retroactively. See Johnson Vs. New Jer-

sey, 384 U.S. 719 86 Sup. Ct. 1772, 16 L.Ed. 2d 882 (Sup.

Ct. 1966). State Vs. Evans, 249 La. 861, 192 So 2d 103

(1966). State Vs. Hudgins, 259 La. 83, 249 So 2d 532

(1971).

The Dino decision, and its impact on police custodial in-

terrogation of juveniles in Louisiana, may be likened to the

United States Supreme Court decision in Miranda Vs. Ari-

zona, 384 U.S. 436 (1966). Both Dino, which requires that

an attorney or adult consult with the juvenile, and Miranda,

which requires the giving of certain warnings or rights, dealt

with an absolute prerequisite to the admissibility of an in

custody confession. The United States Supreme Court in

Johnson Vs. New Jersey, 394 U.S. 719 (1966) decided that

the Miranda rule would not be given retroactive effect and

would apply only to cases in which the trials commenced

after the effective date of the decision. Although Dino

announced an additional state safeguard, greater than the

Federal safeguards of Miranda, the sole issue presented by

petitioner’s application should be one of voluntariness under

the existing ‘‘totality of circumstances” test.

Prior to the Dino decision, the “totality of circumstances”

test was well accepted in Louisiana as a basis for a determina-

tion of whether a juvenile knowingly and intelligently waived

——_-_

his constitutional rights. State Vs. Hill, 354 So 2d 186 (La.

1977), State Vs. Hall, 350 So 2d 141 (La. 1977). Further-

more the “totality of circumstances’ test was the prevailing

rule throughout the nation at this time. West Vs. United

States, 399 F. 2d 467 (5th Cir. 1968).

Considering the purpose of the rule announced in Dino

and the justifiable reliance upon the “totality of circumstan-

ces” test, the State of Louisiana submits that an extremely

detrimental effect upon the administration of justice would

result from a retroactive application of the Dino rule which

would require the release of all juveniles convicted on the

basis of custodial interrogations under the “totality of cir-

cumstances” test. Such a far reaching decision, as in Dino,

without prior judicial or legislative guidelines, should not be

given retroactive application.

B.

If petitioner’s Application for Writs is premised on the

theory that the new Dino guidelines are Federally protect-

ed Constitutional guarantees, the State would suggest that

the application for writs should be denied.

This Court has consistently refused to permit State Su-

preme Courts to impose greater Miranda restrictions as a

matter of Federal Constitutional law. Oregon Vs. Hass,

420 U.S. 714 95 S. Ct. 1215 43 L. Ed 2d 570 (1975).

As a Federal Constitutional issue, the guidelines of Miran-

da are to be interpreted within their own explicity stated

rationale and within the expressed terms and logic of the

original opinion. Oregon Vs. Mathiason, 429 U.S. 492 97

S. Ct. 711 50 L. Ed. 2d 714 (1977). Fare V. Michael C., 99

S. Ct. 3 (1978).

Consequently, any attempt to elevate the Louisiana guide-

lines of Dino to Federal Constitutional guidelines should be

rejected by this Court. Therefore, the admissibility of a

confession as a matter of Federal Constitutional law is to

be determined by a review of the “Totality of Circumstan-

ces”, which includes any factors that bear on the voluntari-

ness of the confession. Fare V. Michael C., No. 78-334,

99 S. Ct. — (June 20, 1979).

WHETHER A JUVENILE CAN KNOWINGLY AND

INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL,

AND HIS RIGHT AGAINST SELF-INCRIMINATION,

IS A QUESTION OF FACT TO BE DETERMINED BY A

REVIEW OF THE “TOTALITY OF CIRCUMSTANCES”.

STATE VS. HILL, 354 So 2d 186 (La. 1977); WEST VS.

UNITED STATES, 399 F. 2d 467 (5th Cir. 1968).

Application of the “totality of circumstances’ test re-

quires that the State sustain the burden of affirmatively

proving that the waiver of rights by a juvenile was made free-

ly and voluntarily. In making such a determination many

factors should be considered; 1) the age of the accused,

2) the education of the accused, 3) the knowledge of the

accused as to the charge, 4) whether the accused is held

incommunicado, 5) whether the accused was interrogated

before formal charges, 6) the method used in the interro-

gation, and 7) the length of interrogation. All of these

factors, and any others, should be considered in arriving

at a determination of whether or not a juvenile freely,

knowingly, and voluntarily waived his constitutional rights

9

against self-incrimination by giving a confession.

The “totality of circumstances” in the present case shows

that Donnie Collum, age 15, Scotty Collum, age 14 were no

strangers to police procedure or to police authorities. They

had previously had several juvenile delinquent encounters

with the law. Furthermore, within six weeks of these quad-

ruple murders they had been in police custody on at least

two occasions. On the afternoon of their arrest, they were

arrested in their mother’s presence and advised of the basis

of their arrest. Both were advised of their constitutional

rights and again reminded approximately four or five times

of these rights. Both were interrogated after a formal arrest

warrant had been issued, and both were advised of the police

intentions to question them concerning their father’s death.

The interrogation of Donnie Collum lasted approximately

thirty minutes, from 3:00 to 3:30 p.m. This interrogation

ceased when the defendant became nervous and upset. The

second interrogation of Donnie Collum lasted approximately

forty minutes. He gave a taped interview at which time he

admitted committing the four murders. This second interro-

gation was at the defendant’s request. He also acknowledged

that he was advised of his rights, constantly reminded of

these rights, and that he had requested the second interview.

The interrogation of Scotty Collum likewise lasted less

than an hour. Similarly Scotty Collum was advised of his

rights and constantly reminded of those rights. He was ad-

vised that the police authorities wished to question him con-

cerning his father’s death. At this time, Scotty gave a tape

recorded statement concerning his participation in the quad-

ruple murders. Scotty Collum who had been arrested at

approximately 2:30 p.m. (Pacific time), gave his tape record-

10

ed statement within two hours of his arrest.

These tape recorded interviews were offered into evidence

by the State at the motion to suppress. They were heard by

the trial judge. They were also heard by the Louisiana Su-

preme Court. They show a careful, slow and deliberate inter-

view free of any hint of impropriety by the officers and show

an unrestricted willingness on the part of the defendants to

disclose even the most minute details of the quadruple

murders.

The State of Louisiana suggest that the evidence and the

record in this case clearly shows that Donnie Collum, age 15,

and Scotty Collum, age 14, were well aware of their rights

and indeed understood that they were giving a statement

concerning their involvement in these four homicides. The

evidence further shows that both the California authorities

and the Louisiana authorities were extremely cautious in

protecting the constitutional rights of the defendants. The

entire testimony of all of the officers stands unimpeached

and uncontradicted. The taped statements of Donnie Collum

and Scotty Collum were indeed free and voluntary and were

not the result of any outside influences or pressures.

11

CONCLUSION

For the foregoing reasons it is respectfully submitted that

this Honorable Supreme Court of the United States should

deny petitioner’s Application for Writ of Certiorari.

Respectfully Submitted,

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

FRANCIS DUGAS

DISTRICT ATTORNEY

17TH JUDICIAL DISTRICT

WALTER K. NAQUIN, JR.

ASSISTANT DISTRICT

ATTORNEY

17TH JUDICIAL DISTRICT

POST OFFICE BOX 431

THIBODAUX, LOUISIANA

BY:

WALTER K. NAQUIN, JR.

12

CERTIFICATE

It is hereby certified that a copy of the foregoing response

was this day served upon Ferdinand J. Kleppner, Attorney

for Petitioners, 3224 North Turnbull Drive, Metairie, Louisi-

ana 70002, by depositing same in the United States mail.

postage prepaid.

THIBODAUX, LOUISIANA this 24th day of July, 1979.

WALTER K. NAQUIN, JR.

ASSISTANT DISTRICT

ATTORNEY

THIBODAUX, LAFOURCHE

PARISH, LOUISIANA