State Of Louisiana VS William D. Hines
Annotate this Case
Download PDF
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2010 KA 1118
STATE OF LOUISIANA
VERSUS
WILLIAM D HINES
MEN
Judgment Rendered December 22 2010
ALED FROM THE THIRTY SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF TERRE BONNE
STATE OF LOUISIANA
DOCKET NUMBER 497
318
THE HONORABLE TIMOTHY C ELLENDER JUDGE
EMMMMMM3
Joseph L Waitz Jr
District Attorney
Attorneys for Appellee
State of Louisiana
and
Ellen Daigle Doskey
Assistant District Attorney
Houma Louisiana
Bertha M Hillman
Attorney for DefendantAppellant
Thibodaux Louisiana
William D Hines
BEFORE WHIPPLE McDONALD AND McCLENDON JJ
McDONALD J
The
defendant William D Hines was charged by amended bill of
information with one count of aggravated burglary a violation of La R 14
S 60
and pled not guilty Following a jury trial he was found guilty as charged by
unanimous
verdict
He was sentenced to twenty two years at hard labor
enhanced by three years for the fact that the victim was over 65
See La R
S
2
50
14 The court ordered that the sentences be served consecutively to each other
The defendant moved for reconsideration of sentence but the motion was denied
He now appeals contending the trial court erred in denying the motion for mistrial
or request for admonishment of the jury For the following reasons we affirm the
conviction and affirm the sentence imposed under La R 14 but vacate the
S 60
sentence imposed under La R 14
S 50
2
FACTS
During the morning of October 15 2007 the victim Virginia Watson
answered a knock on the front door of her home in Bayou Black
s
Watson
daughter and soninlaw also lived at the residence but were not present during
the incident Watson asked who was there and opened the door to see if it was her
daughter or granddaughter She was confronted by a man with a gun and another
man who was wearing a scarf over his face The victim tried to close the door but
the men forced their way into the home stating where the money The man with
the gun tied the victim hands together with plastic straps and told her to sit down
s
and be quiet The other man kicked doors open and ransacked the house
After
The anietided bill charged burglary in violation of La R 14 aggravated burglary The
S 60
defendant was arraigned on aggravated burglary
2
Dennis Len Livings was also charged by the same bill of information with the same offense
He was not tried with the defendant
2
the man searching the house did not find what he was looking for he asked the
victim where the money that Mike had here The victim replied she was not
s
aware that any money was in the house and the men left without taking anything
After the men left the victim used the automatic dialing feature on her
cellular telephone to call for help
Approximately fifteen minutes later the
defendant Dennis Livings and a woman were apprehended and brought to Bayou
Black Recreation Center for possible identification by the victim
The victim
identified Livings as the man with the gun
The defendant did not testify at trial but the State played an audiotape of a
statement he gave on October 15 2007 At the beginning of his statement the
defendant indicated he had been advised of his Miranda rights and had waived
those rights He denied he was being forced to make a statement He claimed he
his wife Donna Hines and Livings had traveled from Texas to the victim home
s
to recover between 500 and 1 supposedly in the victim
00
000
00
000
000
s
home
He claimed lie and Livings were surprised when the victim answered the
knock on her door and their original plan had been to go in the house look for
the money find it and burn off
ransacked the house
The defendant claimed lie was the man who
He claimed he did not know that Livings had a gun or that
he tied up the victim At the end of his statement the defendant again denied he
was being forced to make a statement and indicated his statement was the truth
He then stated tlhe only thing I have to add is that my wife don have anything
t
to do with this
The
3 victim testified her grandson name is Michael Crawford
s
Miranda
4 v Arizona 384 U 436 86 S 1 16 L 694 1966
S
Ct 602 Ed
2d
3
MOTION FOR MISTRIAL
In his sole assignment of error the defendant argues the trial court erred in
denying the motion for mistrial or request for admonishment of the jury because
during rebuttal closing argument
three
on
occasions the State improperly
commented on the defendant failure to present evidence
s
Louisiana Code of Criminal Procedure article 770 in pertinent part provides
Upon motion of a defendant a mistrial shall be ordered when a
remark or comment made within the hearing of the jury by the
district attorney
during the trial or in argument refers directly or
indirectly to
3 The failure of the defendant to testify in his own defense
An admonition to the jury to disregard the remark or comment shall
not be sufficient to prevent a mistrial If the defendant however
requests that only an admonition be given the court shall admonish the
jury to disregard the remark or comment but shall not declare a mistrial
Louisiana Code of Criminal Procedure article 770 prohibits both direct and
3
indirect references to the def failure to testify Even without these statutory
s
endant
prohibitions the United States Supreme Court has held that a prosecutor is not free
to comment upon a defendant failure to take the stand since such a comment
s
violates the self incrimination clause of the Fifth Amendment made applicable to
2d
the states through the Fourteenth Amendment State v Moser 588 So 1243
1247 La App 1st Cir 1991 writ denied 594 So 1314 La 1992 citing
2d
Griffin v California 380 U 609 612 13 85 S 1229 1232 14 L 106
S
Ct
2d
Ed
1965
When the prosecutor makes a direct reference to the defendant failure to
s
take the stand a mistrial should be declared In the case of such a direct reference a
4
reviewing court will not attempt to determine the effect that the remark had on the
jury Moser 588 So at 1247
2d
Where the reference to the defendant failure to testify is not direct the
s
reviewing court will inquire into the remark intended effect upon the jury in order
s
to distinguish indirect references to the defendant failure to testify which are
s
impermissible from general statements that the prosecution case is unrebutted
s
which are permissible Moser 588 So at 1247
2d
According to the Louisiana Supreme Court when the jurisprudence speaks of
the need to ascertain the intention of a prosecutor reference to the unrebutted
s
nature of the state case the jurisprudence does not envision the impossible task of
s
reading what was actually in the prosecutor mind at the time the reference was
s
made
Instead the test to be employed for determining the intent of such a
reference set forth in Moser 588 So at 1247 is as follows
2d
In cases where the prosecutor simply emphasized that the state evidence was
s
unrebutted and there were witnesses other than the defendant who could have
testified on behalf of the defense but did not do so the Louisiana Supreme Court has
concluded that the prosecutor argument does not constitute an indirect reference to
s
the defendant failure to testify On the other hand where the defendant is the only
s
witness who could have rebutted the state evidence a reference to the testimony as
s
uncontroverted or unrebutted focuses the jury attention on the defendant failure
s
s
to testify and mandates a mistrial Moser 588 So at 1 referencing State v
2d
247
Johnson 541 So 818 822 La 1 In order to support the granting of a
2d
989
mistrial the inference must be plain that the remark was intended to focus the jury
s
attention on the defendant not testifying State v Mitchell 2000 1 p 5 La
s
399
01
21
2 779 So 698 701
2d
5
The defendant in Johnson was convicted of two counts of first degree
murder Johnson 541 So at 82021 He did not testify at trial Johnson 541
2d
2d
So at 822 During guiltphase rebuttal closing argument the State referenced the
fact that the defendant had made statements to several people implicating himself in
the deaths of the victims and argued
I will submit to you that there can be no better evidence in a
criminal proceeding but that evidence from the defendant own mouth
s
not contradicted by anybody Nobody came here and contradicted
anything that was attributed to him not one single person Nobody
took the stand
Johnson 541 So at 822 emphasis in original
2d
The court in Johnson
found the
State had indirectly referred to the
s
defendant failure to take the stand in violation of La CUR art 770 because
3
the only person who could have contradicted the testimony of the witnesses who
said the defendant told them he committed the crimes about what the defendant told
them was the defendant himself Johnson 541 So at 823
2d
In the instant case the State played a portion of the defendant audiotaped
s
statement during closing argument and argued the defendant had admitted he went
into the victim house and doors were kicked open The State also argued there
s
was not one bit of evidence that was introduced that said that this was not an
unauthorized entry of an inhabited dwelling and t was no evidence
here
introduced that there was no battery that occurred
that there was no intentional use
of force or violence upon the victim
During its closing argument the defense argued the defendant audiotaped
s
statement should be disregarded because it was not freely and voluntarily made
The defense argued that during the interrogation of the defendant Detective Brunet
told the defendant that his wife Donna Hines Donna had already given a
statement and brought her into the interrogation room to show the defendant that
6
Donna was in custody
The defense claimed Donna was released because the
defendant made a deal with Brunet Okay I will talk to you if you let my wife go
On rebuttal closing argument the State argued
But what is real important and I have told you earlier what 1 say is not
evidence what defense counsel argues is not evidence it is what
comes from the witness stand And I just want to touch bases on
several things that were mentioned by defense counsel One is about
the a of r They are trying to make it a big deal that the
dvice
ights
statement was not voluntary and that he made a deal with the police
officers that if he gave a statement that they were going to let the wife
Where is that evidence coming from There was no evidence
about that whatsoever That is something that was said in c
losing
rguments
a but there is no evidence to prove it
go
But there is no evidence whatsoever that his statement was under
coercion force or any promises or threats were being made He had
ample opportunity to 1 not to speak to the police He signed a form
agreeing lie would speak And then you heard in his own words at the
beginning of the statement and at the end of the recorded statement that
he was not promised anything nothing was threatened and that he gave
a statement freely and voluntarily
Also mentioned that they went there and you should not find the
defendant guilty because they went in there to get that sic belonged
to them
I didn hear any evidence presented from the witness stand
t
that anything in that house belonged to the defendant nothing in that
house belonged to Dennis Livings nothing as a matter of fact in the
losing
c they were talking about the cocaine that somebody had that
Michael Crawford had and they were trying to get cocaine back That
was in c That is not the evidence
losing
After the completion of the rebuttal closing argument the defense moved for
a mistrial or in the alternative for an admonishment The defense argued the State
had referred to the defendant not taking the witness stand by arguing there was not
one piece of evidence introduced that this was not an unauthorized entry of an
inhabited dwelling The defense added f the State also said that there
urther
was no evidence introduced that was not a simple battery
7
The Court denied the
motion for mistrial and also refused to admonish the jury The defense objected to
the court ruling
s
Initially we note the defense failed to object to the particular portions of
rebuttal closing argument quoted above he challenges on appeal Accordingly he
failed to preserve review of the closing argument for error if any See La C
P
Cr
art 841 An irregularity or error cannot be availed of after verdict unless it was
A
objected to at the time of occurrence
Moreover the trial court correctly denied the motion for mistrial and request
for admonishment
The State did not directly or indirectly refer to the defendant
s
failure to testify Rather the State pointed out to the jury that the defense closing
argument was merely that
argument and not evidence The State had the right to
answer the argument of the defendant
shall be confined
See La C art 774
P
Cr
to the lack of evidence
confined to answering the argument of the defendant
The argument
The state rebuttal shall be
s
Further the defendant was
not the only witness that could have rebutted the State evidence concerning the
s
voluntariness of his audiotaped statement Detective Brunet and Captain Wolfe
were present during the entire interview with the defendant Indeed the defense
thoroughly cross examined Detective Brunet concerning
whether
or
not
the
s
defendant statement was given in exchange for the release of his wife In regard to
the argument that the defendant or his accomplice had some legitimate claim to
items in the victim house the defense cross examined the victim concerning
s
whether or not her grandson had drugs or money in her house See State v Steele
2001 1414 pp 11 La App 5th Cir 9 829 So 541 54950 writ
14
02
30
2d
denied 20022992 La 9 853 So 632 The remarks by the prosecutor in
03
19
2d
closing were not made to suggest that the defendant failed to testify at trial but to
counter the defense suggestion that the shooting was in self defense Moreover a
8
review of the full text of the argument indicates that the intent of the prosecutor was
to inform the jury of the lack of evidence to support defendant position
s
Stated another way the prosecutor argument illustrated for the jury that its case
s
was unrebutted
Such an argument is permissible within the parameters of La C
P
Cr art 774
This assignment of error is without merit
REVIEW FOR ERROR
Initially we note that our review for error is pursuant to La C art 920
P
Cr
which provides that the only matters to be considered on appeal are errors
designated in the assignments of error and error that is discoverable by a mere
inspection of the pleadings and proceedings and without inspection of the
evidence La C art 920
P
Cr
2
The sentencing minutes in this case indicate the trial court sentenced the
defendant to twentytwo years at hard labor enhanced by 3 years for the fact that
the victim was over 65
At sentencing the State advised the trial court the
defendant went to trial on a charge of aggravated burglary against a person over
the age of sixtyfive and he was found guilty of that matter At the hearing on the
motion to reconsider sentence defense counsel set forth the defendant had been
sentenced under La R 14 and La R 14
S 60
S 50
2
The court in its discretion may sentence in addition to any other penalty
provided by law any person who is convicted of a crime of violence or an attempt
to commit any of the crimes as defined in R 14 2 with the exception of first
S
B
degree murder R 14 second degree murder R 14 30 aggravated
S 30
S
1
assault R 1 aggravated rape R 14 and aggravated kidnapping
S 4
37
S 42
S 44
R 14 to an additional three years imprisonment when the victim of such
crime is sixtyfive years of age or older at the time the crime is committed
9
La
S 4
R 1
2
50
Aggravated burglary is a crime of violence as defined in La R
S
0
2
14 See La R 14
S 2
20
B
Any fact other than a prior conviction that increases the maximum penalty
for a crime must be charged in an indictment submitted to a jury and proven
beyond a reasonable doubt Apprendi v New Jersey 530 U 466 476 120
S
Ct
S 2348 2355 147 L 435 2000 Jones v United States 526 U 227
2d
Ed
S
243 n 6 119 S 1215 1224 n 6 143 L 311 1999 Additional elements
Ct
2d
Ed
of an offense must be charged in the indictment submitted to a jury and proven by
S
Ct
the government beyond a reasonable doubt Jones 526 U at 232 119 S at
1219
The statutory maximum for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant Blakely v Washington 542 U 296 303 124 S
S
Ct
2531 2537 159 L 403 2004 State v Hardeman 2004 0760 p 1 La
2d
Ed
0
App lst Cir 2 906 So 616 626
05
8
1
2d
The
sentence
imposed
under
La
S
R
2
50
14
in
this
matter
was
unsupported by facts reflected in the jury verdict or admitted by the defendant The
bill of information originally charged the defendant with burglary of the victim
s
residence and set forth the victim was over the age of sixty five The original bill
also included citation to both La R 14 and La R 1
S 60
S 4
2
50
The State
however amended the bill prior to trial to delete reference to the victim age and
s
to La R 14 Further the court did not charge the jury on La R 14 50
S 50
2
S
2
and the responsive verdicts submitted to the jury for consideration did not
reference the age of the victim Additionally contrary to the position of the State
at sentencing the jury returned a verdict of Guilty of aggravated b
urglary
and made no finding on whether or not the victim was sixty five years of age or
older at the time the crime was committed
10
We are aware of State v Armour 2003 1882 La App 4th Cir 4
04
28
874 So 304 wherein the court affirmed a sentence of eighteen years at hard labor
2d
under
La
S
R
6
65
4
1
purse
snatching
enhanced
under
La
S
R
A
1
529
15 I a second felony habitual offender which expressly included an
additional sentence of three years under La R 14 Armour however was
S 50
2
rendered prior to Blakely which we find controlling in this case Accordingly the
enhanced sentence of three years imposed under La R 14 is hereby
S 50
2
vacated
CONVICTION AFFIRMED SENTENCE IMPOSED UNDER LA R
S
60
14 AFFIRMED SENTENCE LMPOSED UNDER LA R 14 50
2
S
VACATED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.