STATE of Louisiana v. Jesse Jay MONTEJO.
No. 2006-KA-1807.
Supreme Court of Louisiana.
January 16, 2008.
Rehearing Denied March 7, 2008.
974 So.2d 1238
VICTORY, J.
Charles C. Foti, Jr., Attorney General, Walter P. Reed, District Attorney, Kathryn W. Landry, Assistant District Attorney, for appellee.
VICTORY, J.
On October 24, 2002, Jesse Jay Montejo and Jerry Moore were indicted by a grand jury for the first degree murder of Lewis Ferrari, a 61-year-old Slidell man who was found dead by his wife in their kitchen on September 5, 2002.1 After trial, the jury found Montejo guilty as charged on March 9, 2005. The brief penalty
FACTS AND PROCEDURAL HISTORY
Lewis and Patricia Ferrari operated a family dry-cleaning business with nine stores in St. Tammany Parish and one store in Tangipahoa Parish. At 3:30 p.m. on the Thursday of the murder, Mr. Ferrari left the store where his wife worked and went to the grocery store. When he failed to show up for dinner at a local restaurant at 6:00 p.m., Patricia Ferrari went to their home, where she found the garage door open and Mr. Ferrari‘s car missing. Upon entering the kitchen, she saw groceries on the counter still in grocery bags and found Mr. Ferrari dead on the floor of the kitchen. Mr. Ferrari had suffered two gunshot wounds, one to the right chest area and one to the right eye. The gunshot wound to the eye was fatal within a matter of seconds.
According to the state, the crime was planned by Moore and perpetrated by Montejo with the assistance of Montejo‘s 19-year-old step-brother, Eric Gai. At trial, witnesses described the victim as a person who followed a well-known and predictable routine, and who was killed on the day he transported the payroll. The victim‘s widow described her husband‘s habits for the jury, including how he transported money, deposits, and checks in the trunk of his vehicle on Thursdays, which was the day he did payroll, and how he could usually be found at home between four to six p.m. Birdie Sue Morrow, who worked as a contract seamstress for the victim, confirmed that the victim paid his employees on Thursdays. Typically on Thursdays, the Ferraris would meet at a local restaurant sometime after 6:00 p.m. for a family dinner.
The victim‘s adult son, Lewis Ferrari III, testified that Moore was familiar with his father‘s routines. Several witnesses described Moore‘s recent association with the defendant and his long-term but rocky relationship with the victim. The victim‘s widow testified that Moore had performed mechanical work for the family dry cleaning business for about 10 years but that he became unreliable.4 Lewis F. Ferrari III confirmed that Moore was capable of good electrical work but that he had become very unreliable, and he said that he objected to his father continuing to employ Moore. Both of these witnesses testified that Moore recently lost his driver‘s license and he had hired Montejo, whom he met while hitchhiking, to transport him. The victim‘s son described Montejo‘s car as a blue van with a distinctive chrome cattle guard in the front.
Morrow testified that she saw Moore and the victim argue on two occasions:
The victim‘s widow testified that they lived in a quiet neighborhood on Rue Lamothe in Slidell. Several neighbors noticed Montejo‘s blue van, with its distinctive chrome cattle bar, in the neighborhood the time of the murder.7 Stacy Stubbenville, who lived on Rue Lamothe, was driving home at about 4:15 p.m. on the day the victim was murdered when she noticed an unusual blue van with a chrome cattle bar on the front. The van had a driver and a passenger. Larry Landry, another neighbor, also noticed the blue van in the neighborhood at some time between three to five p.m. on the day of the murder. Jo Ann Diaro lived near the Ferraris. On the day of the murder, she arrived home at 5:00 p.m. and left again at 5:30 p.m., when she noticed two vehicles: a blue van (driven by a young white male with brown hair) driving very quickly down the street and the victim‘s white Lincoln (whose driver she could not see) backing out of the Ferraris’ driveway. The two vehicles almost collided when the Lincoln cut off the van and they stopped briefly together before exiting the neighborhood. Finally, Janice Dow, who also lived near the Ferraris, saw the blue van driving very quickly through the neighborhood twice on the day of the murder: once at 4:30 p.m. and again at about 5:30 p.m. with the Ferraries’ white Lincoln behind it.
The state presented physical evidence, which included the undisputable presence of Montejo‘s DNA under the victim‘s fingernails. Dr. Dudhir Sinha, president and laboratory director of ReliaGene, testified as an expert in molecular biology and DNA analysis that he tested scrapings from beneath the victim‘s fingernails and a reference sample from the defendant. A scraping from the victim‘s right hand contained only the victim‘s DNA; a scraping from the victim‘s left hand contained a mixture of the victim and defendant‘s DNA. Dr. Sinha also concluded that the victim intentionally scratched defendant because sample characteristics ruled out DNA transfer by coincidental contact.
The victim‘s body was examined at the crime scene as well as later autopsied by Dr. Mike Difatta, chief deputy coroner for St. Tammany Parish. Dr. Difatta testified as an expert in forensic pathology that the victim sustained two gunshot wounds: one superficial and one fatal. According to Dr. Difatta, the victim was shot once in close contact in his right side and again in his right eye from a distance of at least three feet.8 The victim would have died within seconds of the gunshot to his head, which the evidence suggested was fired between
Sergeant Carl Fullilove testified as an expert ballistics and firearms examiner that he examined a bullet and bullet fragments found at the crime scene but noted that the murder weapon was not found in this case. He said that a single intact bullet was extracted from the wall at the crime scene that was similar to the victim‘s own revolver ammunition,10 but without the murder weapon it was only possible to infer that the victim was probably killed by a shot from a revolver. James Folse of the St. Tammany Parish Crime Lab collected forensic evidence at the victim‘s home. He extracted an intact bullet from the dining room wall and recovered bullet fragments from the living room near and underneath the sofa. He obtained only one useful fingerprint from the victim‘s residence, which was left by a person who was never identified.11 Susan Downey of the St. Tammany Parish Crime Lab documented the crime scene at the victim‘s home. She observed an intact bullet in a door casing that appeared to have been shot through the victim12 and bullet fragments in the concrete slab beneath the sofa. She testified that the victim‘s sofa had a bullet hole and the characteristic indentation of a revolver. She described the blood pooling, characterized the blood spatter as “high velocity,”13 and she saw no signs of struggle but noticed that the bedroom was in disarray. Downey identified 37 photographs of the crime scene, some of which were projected during her testimony, and which were admitted without objection in globo.
Folse also assisted in processing Montejo‘s van and the victim‘s Lincoln as well as evidence seized from Gai. He photographed
Montejo was interviewed by police from about 4:30 p.m. until about 11 p.m. on September 6, 2002, and again between approximately 3:00 and 4:00 a.m. on September 7, 2002. The centerpiece of the state‘s case was approximately four hours of this videotaped police interrogation during which Montejo slowly made increasingly incriminating statements until he finally admitted that he shot the victim who had unexpectedly returned home and interrupted Montejo‘s burglary.16 On September 23, 2002, indigent defense counsel moved to suppress these statements contending that they were made involuntarily.17 At hearings held on April 20 and June 1, 2004, Detective John Morse18 testified that he first encountered Montejo at the Gretna Police station where Montejo, after being verbally Mirandized, consented to accompany him to the St. Tammany Sheriff‘s Office Criminal Enforcement Building to be interviewed.19 In St. Tammany, Montejo was repeatedly Mirandized, signed several rights waivers,20 and was interrogated by Detective Morse and
The videos of the interrogation on September 6, 2002, up until Montejo invoked his right to counsel at about 10 p.m., show the following. The video begins a little before 7 p.m.23 The defendant was shirtless24 and smoking25 as he related his first version of the crime, in which he claimed that his only involvement was in driving Moore to the victim‘s home and leaving him there without knowing that Moore was going to rob and kill the victim. Confronted with the potential that his DNA might be found inside the home,26 Montejo related his second version of the crime. He said that the victim was not home when he
Montejo: “I would like to answer no more questions unless I am in front of a lawyer.”
Captain Hall:31 “Good enough.” (exits)
Montejo: “Now, . . . ”
Detective Morse:32 “You are under arrest for first degree murder.”33
Montejo: “. . . now, I know you aren‘t that bad a people and all . . . ”
(both detectives stand and turn toward exit)
Detective Major: (interrupting) “Dude, you don‘t want to talk to us no more,
you want a lawyer, right? I trusted you and you let me down.”
Montejo: “No, come here, come here.”
Detective Major: “No, no, I can‘t.”
Montejo: “No, come here . . . ”
Detective Major: “No, you‘ve asked for an attorney, and you are getting your charge. And the shame of it is . . . ”
Montejo: “I don‘t want no attorney.”
The video recorder was turned off at this point and did not begin again until approximately 10 minutes later. All detectives testified at the suppression hearings that, after the exchange quoted above, they terminated the interview and left the room. At trial, Detective Major testified that after the tape was turned off, Montejo “started to literally beg us to come back into the room to continue the interview.” The detectives then met with their supervisors for ten minutes to determine whether they could legally continue the interview. Detective Major testified that during this time, Montejo “continued to ask us to come back in, come back in.” Detective Morse testified that he briefly spoke to Montejo during the unrecorded period to verify that he wished to continue the interview in the absence of legal counsel.34 The district court reviewed the tapes, found the detectives’ testimony credible, and found that Montejo immediately revoked his request for legal counsel.
After Montejo invoked and revoked his right to counsel, defendant was again read his Miranda rights and signed written waivers of those rights. In the video, the detectives confirmed with Montejo, who was visibly upset,35 that he was not interviewed during the preceding untaped interval and that he understood his rights and wished to continue the interview in the absence of counsel. Montejo then retracted his claims that Moore killed the victim, and told a fourth version of the crime as a botched burglary.36 He said that Moore persuaded him to burglarize the victim‘s home, which he believed would be unoccupied, unlocked, and full of money, and that he agreed to do so because his rent was due. However, he found the victim‘s gun inside the home and, when the victim came home and surprised him, Montejo hit him in the head with the gun, warned him to stay back, fired a warning shot, and when that failed, shot and killed the victim, before firing the weapon into the couch to un-cock it, and throwing the gun in the lake. After detectives confronted him with the fact that two vehicles left the crime scene together, Montejo retracted this story and told a fifth version of the crime, in which he blamed a person he knew only as “D.P.,” an African-American male from the Fischer projects, whom he claimed would be impossible to locate. Montejo said he was introduced to D.P. by Moore, who wanted defendant and D.P. to rob the victim. Montejo agreed because his rent was overdue so he met D.P. at the Rally‘s and they went to the victim‘s home. After detectives confronted Montejo with the implausibility of this story, they terminated the interview and the video stops. The
Detective Major and Captain Jerry Hall interviewed Montejo about four hours later in the early morning on September 7, 2002, and that interview was also videotaped. During this interview, Montejo told his sixth version of the crime.37 He said that Gai, who did not know that Montejo planned to burglarize the home because his rent was overdue, dropped him off at the victim‘s house at about 5:30 p.m. and was instructed to return later. Moore had told Montejo that the house was unlocked, contained a lot of money, and would be unoccupied because the family would be at dinner.38 Inside the home, Montejo found a gun, which he picked up to use to scare anyone away who might come home. When the victim returned 10 minutes later, Montejo hit him over the head with the gun, which failed to knock him out, and then fired a warning shot that he intended to miss the victim. However, the victim continued to struggle with him so Montejo shot him. Montejo fled in the victim‘s vehicle, and found Gai and told him to follow him. Montejo threw the gun out of the window into the lake from the Highway 11 bridge, burned the victim‘s money bag, threw his gloves out of the window on the highway, gave $800 to Gai, gave some money to Moore, and used his share of the money to pay bills.
These videos were played for the jury at trial. The defendant also testified. He testified that he falsely confessed during the videotaped interrogation because he was exhausted and trying to satisfy the detectives. He then told a seventh version of the crime, which was an elaborated variation of the fifth in which D.P. was first introduced.39 Defendant testified that on Friday of the week before the murder, when he went to pick up money from the victim on behalf of Moore, the victim introduced him to D.P. and suggested they all meet next week to discuss Montejo working as D.P.‘s, rather than Moore‘s, driver. Montejo described D.P. as an African-American male, about 5’ 8” tall, with his initials tattooed in an Old English script on his forearms, who lived in the Fischer Projects. Next week, on the day before the murder, the victim told Montejo to come to his house the next day before 6 p.m. The next day, Eric Gai, his stepbrother, dropped him off at the victim‘s house, and D.P. answered the door. Inside the residence, D.P. displayed a gun, grabbed Montejo, and took his wallet, from which D.P. retrieved Montejo‘s license, which he scrutinized. D.P. commented that he now knew where Montejo lived, asked him if he had a big mouth, forced him to the floor, placed the gun against his head, threatened to kill or have killed Montejo or a member of Montejo‘s family, and fired the gun into the couch to intimidate him. The victim then arrived and D.P. instructed Montejo to hide. When the victim entered the kitchen, D.P. hit him, which caused the
In addition to these seven versions of the crime, the record contains one additional statement by the defendant: a handwritten letter of apology to the victim‘s widow, which forms the basis of the defendant‘s second assignment of error. The letter was written by Montejo (with pen and paper provided by detectives) on September 10, 2002, as he sat in the back of a police vehicle during an excursion in which he accompanied detectives to show them where he disposed of the murder weapon44 and other evidence.45 According to Detective Hall, he was unaware that the indigent defender board had been appointed to represent the defendant on the morning of September 10,46 and Montejo was again Mirandized before he agreed to accompany and assist detectives that afternoon.47
As stated above, after trial, the jury found defendant guilty as charged and sentenced him to death. On appeal, we now consider his 20 assignments of error, most of which are treated in an unpublished appendix to this opinion.
Right to counsel: invocation and waiver
Assignment 1. Defendant contends that the district court erred in admitting the two videotaped statements that he made after he requested an attorney. Defendant alleges that detectives responded to his request by becoming upset and berating him for his decision, which the defendant characterizes as a calculated effort by police to provoke a change of heart so that they could continue the interrogation. Defendant concedes that, at the close of the video, he can be heard to say that he does not want an attorney. However, he contends that the state failed to carry its burden of proving that he freely and voluntarily changed his mind under the circumstances, which include the emotional reactions of the detectives that were captured in the video, the existence of 10 unrecorded minutes before the resumption of questioning, and his visibly distraught condition when the recorded interrogation resumed. Defendant characterizes the entire interrogation as coercive, and alleges that he was exhausted and intimidated by the process.50 Finally, defendant claims that he was compelled to testify at trial to counter these improperly admitted video statements.
The state responds by emphasizing that defendant‘s immediate change of heart appears on video, and by noting that the district court made factual determinations that: the defendant reinitiated the interview; his request was initially refused by the detectives; and that he persisted in waiving his right to counsel. The state also refers this Court to the video of the defendant‘s re-Mirandization and his signed waiver form. Alternatively, the state contends that the error in admitting these statements, if any, is harmless in light of the evidence against the defendant, which includes his admission (before requesting an attorney) that he was present at the time of the murder as well as the presence of his DNA under the victim‘s fingernails.
In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Supreme Court found that if a suspect indicates “in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Edwards v. Arizona, 451 U.S. 477, 481-85, 101 S.Ct. 1880, 1883-85, 68 L.Ed.2d 378 (1981), reconfirmed these views and, to lend them substance, held that when an accused either before or during interrogation asks for counsel, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated, custodial interrogation, even if he has been advised of his rights. The accused is not subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. In Minnick v. Mississippi, 498 U.S. 146, 150-53, 111 S.Ct. 486, 490-91, 112 L.Ed.2d 489 (1990), the Court confirmed that the Edwards
The requirement that “interrogation must cease” as soon as counsel is requested means what it says, the immediate termination of the interview, even if the request for an attorney occurs in the midst of standard Miranda warnings. See Smith v. Illinois, 469 U.S. 91, 93, 105 S.Ct. 490, 491, 83 L.Ed.2d 488 (1984) (per curiam) (ordering a confession taken in violation of Edwards suppressed where police “[i]nstead of terminating the questioning at th[e point defendant invoked his right to counsel] . . . proceeded to finish reading Smith his Miranda rights and then pressed him again to answer their questions.“); see also State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756, 763, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997). When a defendant exercises his privilege against self-incrimination the validity of any subsequent waiver depends upon whether police have “scrupulously honored” his right to remain silent. Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Miranda and Edwards are prophylactic rules designed to protect an accused against the inherently compelling pressures of custodial interrogation, whether by police badgering, overreaching or subtle but repeated efforts to wear down an accused‘s resistance and make him change his mind. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983); Wyrick v. Fields, 459 U.S. 42, 45-46, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982); Rhode Island v. Innis, 446 U.S. 291, 298-99, 100 S.Ct. 1682, 1688-89, 64 L.Ed.2d 297 (1980).
Louisiana adheres to these principles. When an accused invokes his Miranda right to counsel, the admissibility of a subsequent confession or incriminating statement is determined by a two-step inquiry: did the accused initiate further conversation or communication; and was the purported waiver of counsel knowing and intelligent under the totality of the circumstances. See State v. Abadie, 612 So.2d 1, 5-6 (La.1993), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993); see also
In Oregon v. Bradshaw, supra, a plurality of the Supreme Court clarified Edwards by offering a two-step inquiry to be used to determine whether a defendant
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the subject, rather than the intent of the police.
Innis, 446 U.S. at 300-01, 100 S.Ct. 1682. Likewise, the Court in Smith v. Illinois applied the requirement that “interrogation must cease” as soon as a suspect asks for an attorney in a manner that suggested it means what it says, i.e., the immediate cessation of the interview, even if the request comes in the middle of Miranda warnings. Smith, 469 U.S. at 93, 105 S.Ct. 490. Finally, in Oregon v. Bradshaw, the plurality52 defined what might constitute reinitiating interrogation mostly in terms
While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which the word was used in Edwards.
Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830. This Court scrupulously honored these precedents in State v. Koon, supra at 762-63 (finding that, although the error ultimately proved harmless, “[b]ecause defendant did not reinitiate the conversation but instead the interrogation never ended, the oral statements to [the police officers] should have been suppressed.“). With the analysis framed according to common conceptions and expectations, the events captured on video in the instant can now be evaluated.
Defendant‘s unequivocal and unambiguous request for counsel was captured on video. Defendant informed detectives, after being interviewed for several hours, that he did not wish to answer any more questions without a lawyer. His statement was accompanied by equally clear physical signs that he considered the interview to be over (such as putting his watch back on and leaning back from the interviewers), and the detectives reflected their comprehension of his request both verbally and by standing and preparing to exit the room. The state does not argue that this invocation was unclear or misunderstood. However, at the heart of the dispute is the almost immediate reversal that followed the defendant‘s request for counsel, which is contained in a crucial interchange lasting about 40-45 seconds. As he soon as he was informed that he was under arrest, and as detectives were leaving the room, the defendant called the detectives back and stated that he did not want a lawyer. There is no question that the interview was terminated and the defendant‘s right to refrain from answering additional questions was scrupulously honored, at least with respect to Captain Hall, who simply stated “Good enough” before leaving the room. However, the defendant, only one second later and in the absence of any obvious cue from detectives, began to speak again. He was interrupted, and in fact never completed his thought, but the gist of what he appears to have tried to convey was a social bid to reconcile with detectives: “Now, [. . .]53 now, I know you aren‘t that bad a people and all. . . .” Although it could be argued that this statement evinced a willingness and a desire for a generalized discussion about the investigation, as the Bradshaw Court found the question “Well, what is going to happen to me now?” to express such a willingness,54
Detective Major also interrupted the defendant. However, this detective‘s response merits close scrutiny because he commented on the defendant‘s decision to terminate the interview: “Dude, you don‘t want to talk to us no more, you want a lawyer, right? I trusted you and you let me down.” Because this remark was directed at the defendant, it can be considered as more likely to elicit a response than, for example, statements among detectives.56 However, mitigating against a finding that this detective‘s statement amounted to the functional equivalent of interrogation is the fact that the statement did not invite a response from the defendant.57 It is only after Detective Major made this statement that the defendant began pleading with detectives: “No, come here, come here.” Likewise, it is only after Detective Major began his next statement (which was unfinished in the video), that the defendant clearly stated that he did not want an attorney (which is the last statement that can be heard before the video abruptly stops). This final unfinished statement by Detective Major was a refusal combined with what remains unknown: “No, you‘ve asked for an attorney, and you are getting your charge. And the shame of it is. . . .” However hectoring Detective Major‘s tone, his comments are not questions and were not reasonably likely
The totality of the circumstances indicates to us that the interview was properly terminated and the defendant‘s rights scrupulously honored before his retraction of his request for counsel. We must now move on to the second step of the inquiry and determine whether the defendant validly waived his rights before the resumption of the interrogation.61 Although the burden on the state of proving waiver is a heavy one,62 the instant case presents no basis to doubt the district court‘s conclusion that the defendant knowingly and intelligently waived his rights.
A waiver is valid if it is a knowing and intelligent relinquishment of a known right under the totality of the circumstances, which in turn is determined by “the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461 (1937); Edwards v. Arizona, supra; Oregon v. Bradshaw, supra. The courts will indulge every reasonable presumption against a waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The Supreme Court in Colorado v. Spring delineated a two-part test to be used to determine whether a suspect validly waived his Miranda rights:
First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Id. at 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987) (citations omitted). In the instant case, defendant‘s re-Mirandization and his signing of a written waiver was captured on video. Regarding written waiver, the Supreme Court has noted:
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.
North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). As noted above, the instant defendant was re-advised of his Miranda rights and he signed a written waiver form, all of which was captured on video, before the interrogation resumed and the defendant made his most incriminating statements.
Nonetheless, defendant argues that his relative youth, the length of the interrogation,63 his visibly distraught condition at the time he executed the waiver would support a determination that the waiver was invalid. Defendant alleges that he was exhausted, manipulated and deceived, and argues that the missing 10-15 minutes of video prior to his re-Mirandization is highly suspicious.
However, a review of the videos shows that, although the defendant expresses a desire to go home and sleep in his own bed, he was provided with water, food, and cigarettes. Although he is visibly distraught during the re-Mirandization, he does not appear unduly so nor does he appear distracted or unable to focus. His mental capacity is normal and his mental status is not disputed. Although he is a young adult, he is no longer a juvenile and he is familiar with the criminal justice system. In fact, he comments during the interview that he has spoken with detectives in the past and that he is familiar with the process. Regarding the
The Court is impressed with Officer Morse‘s testimony. The Court finds that there is no undue pressure being asserted. By observing the first taped segment and the second taped segment it is apparent that no duress or force by exerted upon this defendant.
The determination of a statement‘s admissibility is within the trial court‘s discretion, and it should not be disturbed unless it is unsupported by the evidence. State v. Seward, 509 So.2d 413, 417 (La.1987); see also State v. Brooks, 541 So.2d 801 (La. 1989) (trial judge‘s conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence).
In this case, the defendant controlled the pace and scope of his communications with the police about Ferrari‘s murder by carefully adjusting his story to conform to the evidence revealed by detectives. He demonstrated his understanding of his Miranda rights and his capacity to regard or disregard them of his own volition by invoking his right to the assistance of counsel,65 which invocation was followed by an immediate retraction. The record otherwise discloses no coercion used by the police to make the defendant change his mind about discussing Ferrari‘s death and thus fully supports a finding that the defendant made a knowing and voluntary waiver of his Miranda rights. Thus, as we found that the retraction itself was voluntary and unprompted by statements designed to elicit such a response, we also find that the defendant validly waived his Miranda rights before the resumption of the interview. Accordingly, after careful scrutiny, we find that the subsequent recorded statements were properly admitted at trial and that this assignment of error lacks merit.
Assignment 2. Defendant contends that the district court erred in admitting his handwritten letter to the victim‘s widow, which he wrote in the absence of legal counsel in the late afternoon of September 10. Defendant refers this Court to the minute entries to show that a 72-hour hearing was held on the morning of September 10, 2002, at which time indigent defense counsel was appointed to represent him, and characterizes this hearing as a critical stage in the prosecution after which time no agent of the state was permitted
The state responds that the law is not fully settled on the consequences of a 72-hour hearing under our holdings in State v. Hattaway, 621 So.2d 796 (La.1993) and State v. Carter, 94-2859 (La.11/27/95), 664 So.2d 367, and notes further that the defendant only stood in mute acquiescence at this hearing, but argues (assuming that a right to counsel attached at that time) that the defendant validly waived his right to the presence of counsel (after a full Mirandization) prior producing the handwritten letter. In the alternative, the state argues, as in the above assignment of error, that the error, if any, in admitting this statement is harmless in light of the other evidence of the defendant‘s guilt.
The Sixth Amendment right to counsel does not attach until after the initiation of formal charges attaches at the initiation of adversarial judicial criminal proceedings, United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984), whether by way of formal charge, preliminary hearing, indictment, information or arraignment. Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986); Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).
In Hattaway, this Court held that the right to counsel under La. Art. I, Sec. 13, attaches no later than a defendant‘s initial court appearance or first judicial hearing and thereafter applies only to those pre-trial proceedings which would be considered “critical stages” under the jurisprudence interpreting the Sixth Amendment. Hattaway further held that after the first adverse criminal proceeding and the court‘s appointment of an attorney, the state cannot obtain a waiver from the accused or otherwise communicate with him with respect to his offense except through counsel. Id. at 798.
Two years later, this Court decided Carter. In that case, the criminal defendant had appeared in court for an initial appearance, where bond was set and an attorney appointed to represent him. Three days later, the arresting officer met with the defendant in jail, advised him of his rights and asked him if he wanted to make a statement. After signing a form waiving his rights, the defendant made a statement. The trial court denied the defendant‘s motion to suppress, but this ruling was reversed by the court of appeal based on our holding in Hattaway. State v. Carter, 94-1387 (La.App. 4 Cir. 11/2/94). Upon review, we reconsidered Hattaway and overruled some of its holdings.66 In particular, we found that Hattaway‘s holding that right to counsel could not be
Because our constitution can give no less protection than is afforded by the United States Constitution, we are additionally bound by the Court‘s holding in Michigan v. Jackson that once defendant‘s right to counsel has attached, if he makes an assertion or invocation of this right, any waiver he would later make in response to police-initiated interrogation will be considered invalid, regardless of whether the waiver would normally meet the standards of a knowing, intelligent and voluntary waiver. Where defendant‘s right to counsel has attached but he has not made an assertion or invocation of his right to counsel, a waiver in response to police-initiated interrogation can be considered valid provided it is knowing, intelligent, and voluntary. (Emphasis added.)
In this case, defendant‘s right to counsel attached at the 72-hour hearing held on the morning of September 10, 2002, at which time indigent defense counsel was appointed to represent him. While the minute entry clearly shows that counsel was appointed, it does not show a response by defendant. The State alleges that the defendant simply stood mute at this hearing and defendant does not allege that he made any statement at this hearing asserting his right to counsel. As we held in Carter, “[s]omething more than the mere
Because defendant had not asserted his right to counsel, the only remaining inquiry is whether his Sixth Amendment waiver was knowing, intelligent and voluntary. Id. at 385 (“For the fruits of interrogations occurring after the attachment of the right to counsel . . . to be admissible in the prosecution‘s case in chief, the State must prove a voluntary, knowing, and intelligent waiver of the right to counsel.” (citing Michigan v. Harvey, supra)). There is no dispute that defendant was given his Miranda warnings, and that he signed a waiver of these rights, prior to the September 10 excursion to look for the murder weapon, during which time he wrote the apology letter to Mrs. Ferrari.
Ferrari. However, defendant argues that his “waiver” was not a knowing waiver because he was unaware an attorney had been appointed at the 72-hour hearing. Further, he testified at trial as follows:
They asked me if I would come with them to go clear up where I threw the gun at. So I said, Well, and I don‘t, I don‘t, I don‘t really want to go with you. He said, Do you have a lawyer? I said,
yeah, I got a lawyer appointed to me. He said, No, no, you don‘t. I said, Yeah, I think I got a lawyer appointed to me, and I guess that‘s where I messed up, when I said I think I got a lawyer appointed to me. He said, No, you don‘t. He said, I checked, you don‘t have a lawyer appointed to you.69
Detective Hall testified that when he first approached defendant prior to the car ride, he was not aware that he had been appointed counsel earlier that morning and defendant told him he had not been contacted by an attorney. Defendant argues that his waiver could not have been “knowing” since he did not know he had been appointed an attorney.
In Patterson v. Illinois, supra, the Supreme Court validated statements the defendant made to police after he had been indicted for murder, at which time he was entitled to counsel under the Sixth Amendment. There, the Court stated that the key inquiry in such a case must be:
Was the accused, who waived his Sixth Amendment rights during postindictment questioning, made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel?
487 U.S. at 292-93, 108 S.Ct. 2389. The Court then considered that Miranda warnings had been given to the defendant before he made his statement postindictment and held that “the Miranda warnings given petitioner made him aware of his right to have counsel present during the questioning” and “served to make petitioner aware of the consequences of a decision by him to waive his Sixth Amendment rights during postindictment questioning.” Id. In Carter, we relied on Patterson in holding that “in the context of the waiver of the right to counsel in an interrogation, Miranda warnings given to a defendant prior to his making a statement will suffice to meet the state‘s burden of proving the statement was given as a result of a knowing and intelligent waiver of the Sixth Amendment and
Capital Sentence Review
Passion, Prejudice, or Other Arbitrary Factors.
In discharging its duty imposed by the legislature to “review every sentence of death to determine if it is excessive,”
Defendant argues that the death sentence is constitutionally excessive due to the following: the total absence of any presentation of mitigating evidence during the penalty phase of the trial, making meaningful sentence review impossible; the prejudice that resulted from the introduction of graphic autopsy photographs, improper “victim impact evidence” during the guilt phase of the trial, and the arbitrariness created by the trial court‘s frequent admonitions to speed the proceedings along; and numerous substantial errors occurring at trial. First of all, given that it was defendant‘s burden to present mitigating evidence, the fact that none was presented will not prevent a death penalty from being imposed.71 Further, although the crime scene and autopsy photographs were gruesome, their probative value outweighed any prejudicial effect that may have resulted. Regarding the victim‘s wife testimony at trial, this testimony did not rise to the level of “victim impact evidence” which is generally not admissible during the penalty phase. Finally, there is no merit to the defendant‘s argument that the trial judge‘s remarks to speed things along injected an arbitrary factor into the proceedings because the jury could clearly see that the trial judge was proceeding with careful deliberation reflecting the importance of a capital case. Beyond those issues, the record does not show any indicia of passion, prejudice, or arbitrariness. Defendant, a white male, killed a white male victim and received a sentence of death from a jury, during the selection of which no Batson or reverse-Batson claim was raised. Nothing in the record suggests race was an issue in the trial.
Aggravating Circumstances.
As demonstrated by the jury‘s verdict during the guilt phase of the trial, the state presented sufficient evidence to prove beyond a reasonable doubt that defendant was engaged in the perpetration of an armed robbery and an attempted armed robbery when he killed the victim. A review of the record shows that the evidence was sufficient to support such a determination.
Proportionality.
The federal Constitution does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). However, comparative proportionality review remains a relevant consideration in determining the issue of excessiveness in Louisiana, State v. Burrell, 561 So. 2d 692 (La. 1990), cert. denied, 498 U.S. 1074, 111 S. Ct. 799, 112 L. Ed. 2d 861 (1991); State v. Wille, 559 So. 2d 1321 (La. 1990); State v. Thompson, 516 So. 2d 349 (La. 1987), cert. denied, 488 U.S. 871, 109 S. Ct. 180, 102 L. Ed. 2d 149 (1988),
The Uniform Capital Sentence Report reveals that defendant is a white male born on May 11, 1979. He was 23 years old at the time of the offense and is now 28 years old. He did not graduate from high school, nor did he obtain a GED during his juvenile incarceration in Florida, which began when he was 18 years old and lasted for 6 years. Experts agree that he suffers from anti-social personality disorder but is otherwise free from abnormal mental functioning. Following his release from prison in Florida, he was briefly employed in roofing work until quitting his job to work as a driver for his co-defendant. The extensive list of offenses to which he pled guilty as a juvenile are enumerated in footnote 11 of the unpublished appendix.
Since 1976 there have been 24 successful prosecutions for first degree murder in the 22nd Judicial District Court which comprises the parishes of St. Tammany and Washington. Of these cases, jurors have returned the death penalty nine times, excluding the instant case. However, three of these cases resulted in the annulment of the death penalty and the imposition of a life sentence.72 In three others, the jury returned armed robbery and heinousness as aggravating factors. The most recent case is that of David Wilson who fatally shot a motorist for gas money. State v. Wilson, 467 So. 2d 503 (La. 1985), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 246 (1985). The federal Fifth Circuit subsequently granted relief on his ineffectiveness claim which resulted in a stipulation, conditioned on the defendant waiving his right to appeal, that he would receive a life sentence. Wilson v. Butler, 825 F.2d 879 (5th Cir. 1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1059, 98 L. Ed. 2d 1021 (1988). His co-defendant, Larry Taylor, received a life sentence following his conviction for first degree murder. State v. Taylor, 469 So. 2d 46 (La. App. 1 Cir. 1985). The next case is that of David Rushing who robbed and killed a cab driver with a shotgun. State v. Rushing, 464 So. 2d 268 (La. 1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2258, 90 L. Ed. 2d 703 (1986). His death sentence was later vacated by the federal Fifth Circuit based on the improper introduction of victim impact evidence. He is now serving a life sentence without benefit of parole, probation, or suspension of sentence. Rushing v. Butler, 868 F.2d 800 (5th Cir. 1989). Rushing‘s co-defendant, Jeffrey Fussell, pled guilty and was sentenced to life imprisonment. Rushing, 464 So. 2d at 271 n. 2. The third case involves Frederick Kirkpatrick, who robbed and killed an elderly man by striking him in the head with a heavy glass object, implanting a butcher knife into the victim‘s chest, and shooting him in the head. State v. Kirkpatrick, 443 So. 2d 546 (La. 1983). The federal Fifth Circuit remanded his case for a hearing based on a Brady violation; the state and defense
Finally, in one instance, a jury recommended death after finding the sole aggravating circumstance of armed robbery. In that case, co-defendants Roy Clark, Jr. and Brent Mikell, were accused of shooting the victim during an attempted armed robbery. Their death sentences were subsequently set aside and the trial court imposed life sentences. State v. Clark, Jr., 340 So. 2d 208 (La. 1976).
Although several capital verdicts from St. Tammany and Washington Parishes were ultimately set aside, a review of those cases does not suggest that the defendant received a disproportionately harsh sentence in this case. Further, a state-wide review of cases reflects that jurors often return the death penalty when innocent adult victims have been robbed or raped and murdered in or near their home or car. See State v. Robertson, 97-0177 (La. 3/4/98), 712 So. 2d 8, cert. denied, 525 U.S. 882, 119 S. Ct. 190, 142 L. Ed. 2d 155 (1998); State v. Tart, 92-0772 (La. 2/9/96), 672 So. 2d 116, cert. denied, 519 U.S. 934, 117 S. Ct. 310, 136 L. Ed. 2d 227 (1996); State v. Burrell, 561 So. 2d 692 (La. 1990), cert. denied, 498 U.S. 1074, 111 S. Ct. 799, 112 L. Ed. 2d 799 (1991); State v. Eaton, 524 So. 2d 1194 (La. 1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 818, 102 L. Ed. 2d 807 (1989); State v. Wingo, 457 So. 2d 1159 (La. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2049, 85 L. Ed. 2d 822 (1985); State v. Glass, 455 So. 2d 659 (La. 1984), cert. denied, 471 U.S. 1080, 105 S. Ct. 2159, 85 L. Ed. 2d 514 (1985); State v. Celestine, 443 So. 2d 1091 (La. 1983), cert. denied, 469 U.S. 873, 105 S. Ct. 224, 83 L. Ed. 2d 154 (1984); State v. Narcisse, 426 So. 2d 118 (La. 1983), cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).
Furthermore, as noted above, at the time of the offense, defendant was 23 years old and we have previously affirmed death verdicts for defendants younger than this. State v. Craig, 95-2499 (La. 5/29/97), 699 So. 2d 865, cert. denied, 522 U.S. 935, 118 S. Ct. 343, 139 L. Ed. 2d 266 (1997); State v. Comeaux, 93-2729 (La. 7/1/97), 699 So. 2d 16, cert. denied, 522 U.S. 1150, 118 S. Ct. 1169, 140 L. Ed. 2d 179 (1998); State v. Prejean, 379 So. 2d 240 (La. 1979), cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980). Compared to these cases, it cannot be said that the death sentence in this case is disproportionate.
DECREE
For the reasons assigned herein, the defendant‘s conviction and death sentence are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under
AFFIRMED.