State v. HernandezState v. Hernandez
Defendant, Brian K. Hernandez, was charged by bill of information with four counts of simple burglary in violation of
On December 9, 1980, the defendant, along with two friends2, took three motorcycles from the Sherwood Forest subdivision of Baton Rouge. As they were speeding down I-10, they came to the attention of the police who began pursuit. The other cyclists wrecked and were apprehended by
Assignment of Error # 1
The defendant alleges that the trial court erred by admitting into evidence a statement he made to police at the time of his arrest. At that time he responded to questions posed by the police, and admitted being involved in a motorcycle chase with police on December 9, 1980 and that the jacket he was wearing at the time of the arrest was the same one he wore on the night of the chase (a description of the suspect and the jacket had been circulated).
The issue presented by this assignment of error is whether the defendant‘s statement is admissible as a free and voluntary confession. Pursuant to
In this case the defendant denied that he made a statement and also claimed that he made a false statement. However, Detective Emile Bourgoyne testified that when the defendant was arrested, he admitted that he was involved in a motorcycle chase with police and that the jacket he was wearing was the one he had on the night of the chase. Detective Bourgoyne also testified that he gave the Miranda warnings to defendant and that no threats, promises, coercion, or duress were used in order to elicit a statement from the defendant. At the time of his arrest the defendant stated that he did not want to make a written or taped statement but he voluntarily answered a few questions. At trial he testified as follows:
Q. Did you understand that you had a right not to talk to them or give them any statements?
A. Yes, sir.
Q. Did you in fact talk to them?
A. Yes, after a little bit—uh—he asked me a few questions and I told, you know,—uh—I never did really tell him anything to amount to anything. He just asked me a few questions and I didn‘t really give him a straight answer.
Q. Why did you tell him anything at all?
A. Because he offered to help me. He told me he couldn‘t do very much but he would help me if I gave him a statement. I told him I wasn‘t going to give a recorded or a written statement.
Q. Did he tell you specifically what he would do? How he would help you?
A. He said that he would try to help me out as much as he could. He didn‘t say what he was going to do or how he was going to do it. He just said he would try to help me.
Q. Was it based upon that you gave him the statement that you did give him?
A. What?
Q. Did you give him a statement that you in fact gave based on his promise to help you as best he could?
A. I don‘t even know what statement I gave him. I don‘t never remember giving him a statement to anything but he asked me a few questions and I answered it, you know.
Q. Do you remember what the questions were?
A. No,—uh—something about some burglary charges. That is all I remember.
In finding the confession admissible the trial judge stated:
The court finds from the evidence that beyond a reasonable doubt the accused was properly advised of all of his constitutional rights and even from his testimony
that he understood those rights. The court finds beyond a reasonable doubt that there were no promises, coercion, duress, force or threats used upon the defendant to obtain a statement. As a matter of fact from the defendant‘s testimony he says that he didn‘t even give a statement in relation to this case whatsoever. So, even assuming that there had been some kind of a promise—uh—which I don‘t find from the evidence was given—uh—he still didn‘t follow through with his part of the promise, because whatever he said, he said was a pack of lies. He didn‘t even comply with what he had told the trooper even accepting his own testimony. At any rate the issue is not whether a statement was made freely and voluntary. It is simply whether or not there was a statement. The defendant says he doesn‘t recall giving one. Trooper Bourgoyne states unequivocally that the defendant did make a statement. At any rate the State has fulfilled their obligation of proving those factors that I must be satisfied beyond a reasonable doubt. Whatever statement was made in relation to this case will be admitted to the jury.
In view of such contradictory testimony we note that the determination of credibility is a function of the trier of fact. State v. Robertson, 421 So.2d 843 (La.1982). Additionally, once a trial judge has determined that the State has met its burden of proof with regard to the voluntariness of a confession his decision is entitled to great weight on review. State v. Lindsey, 404 So.2d 466 (La.1981).
In State v. Vernon, 385 So.2d 200 (La. 1980), the defendant, subsequent to receiving the Miranda warnings, consented to questioning and his confession was admitted at his trial for first degree murder. On appeal he alleged that he had been promised a charge of aggravated battery as inducement for his cooperation. The Court found, however, that this allegation was specifically rebutted by testimony of police officers. It went on to state:
The mere fact that one officer told Vernon that the district attorney would be advised of any cooperation can not be considered sufficient inducement to vitiate the free and voluntary nature of the confession. Id., at 204.
Likewise, we find that even if defendant‘s testimony that the officers made a vague promise to “help” was acceptable, it is insufficient to negate the voluntary nature of his responses. Accordingly, we find no abuse of discretion in the trial judge‘s decision to admit the confession as evidence; therefore, this assignment of error is without merit.
Assignment of Error # 2
Defendant also alleges that the trial court erred by imposing excessive and illegal sentences. At sentencing, the defendant was adjudicated a habitual offender as he had a previous felony conviction. For each of the four counts of burglary the defendant received the following sentences:
1. Twelve years at hard labor, with the sentences to be served concurrently.
2. Payment of the costs of prosecution in this case or serve one year in the parish prison.
3. Payment of a fine of $2,000.00, or furnish proof of restitution to the victims in each count in the amount of $2,000.00, or serve one year in parish prison.
The following sentences were given for the three counts of attempted theft:
1. Payment of a $200.00 fine or in default thereof, serve 60 days in prison; and the costs of prosecution and victim reparation cost or, in default of such payment, serve six months in prison.
2. One year in the parish prison for each count, with the sentences to run concurrently with each other but consecutive to the sentences for burglary.
The first issue is whether the sentence imposed is illegal because the trial court ordered defendant to make restitution to the victims in lieu of payment of a fine.
The second issue to be considered is whether the sentence imposed is excessive because the trial court imposed the maximum sentence of imprisonment as well as the maximum fine and also imposed an additional sentence in the event of default in payment of the fine.
This issue was dealt with by the Supreme Court in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). In this case it was held that the
... a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly.... [T]he
Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status. Id., at 243-244, 90 S.Ct. at 2023.
This reasoning was applied to the case of State v. Williams, 288 So.2d 319 (La.1974), by the Louisiana Supreme Court. In that case the Court vacated the fines that defendant was sentenced to pay as well as a part of the sentence which was to be served in parish prison in default of payment of the fines. The Court noted the defendant‘s indigency was satisfactorily established by his representation by counsel appointed from the Indigent Defender Program.
For the foregoing reasons, this case is remanded to the trial court for resentencing. In all other respects this case is affirmed.
REMANDED IN PART, AFFIRMED IN PART.
LANIER, Judge, concurring in part.