APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES. NO. 11-3517, DIVISION " B" . HONORABLE MICHAEL D. CLEMENT. (ON REMAND FROM THE LOUISIANA SUPREME COURT).
Charles Joseph Ballay, District Attorney, Edward Robert McGowan, Assistant District Attorney, Belle Chasse, LA, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.
Sherry Watters, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT, WAYNE G. TAYLOR A/K/A WAYNE TAYLOR.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Terri F. Love, Judge Sandra Cabrina Jenkins). JENKINS, J., CONCURS IN THE RESULT.
Dennis R. Bagneris, Sr.
[2013-0265 La.App. 4 Cir. 2] On March 17, 2015, the Louisiana Supreme Court issued a Per Curiam finding that this Court erred in reversing defendant Wayne Taylor's conviction for an unauthorized entry of a place of business and instructed this Court to consider the defendant's remaining assignments of error which had been pretermitted. This opinion follows.
In his appeal, the defendant asserted that the evidence was insufficient to sustain his conviction for unauthorized entry of a place of business. This Court found merit in defendant's assignment of error that the evidence was insufficient to support his conviction and reversed defendant's conviction and six year sentence at hard labor. Thereafter, the State filed a writ of certiorari with the Louisiana Supreme Court, which was granted. State v. Taylor, 14-0432 (La. 10/31/14), 151 So.3d 611. The Louisiana Supreme in the March 17, 2015 Per Curiam, held that " ...unauthorized entry of a place of business is a statutorily-provided responsive verdict to a charge of simple burglary, La. C.Cr.P. art. 814(A)(42) and the evidence presented at trial was sufficient to have supported a verdict for the charged offense of simple burglary." Thus, the Louisiana Supreme Court found that the evidence was therefore sufficient to support a verdict for the lessor offense, the unauthorized entry of a place of business, reinstated defendant's conviction and sentence, and remanded the matter to this Court to consider defendant's other assignments of error. State v. Taylor, 14-0432, (La.3//17/15), __ So.3d __, 2015 WL 1212288. In his remaining assignments of error, defendant avers that the trial court erred in: (1) admitting a statement made by defendant; (2) admitting evidence of a prior [2013-0265 La.App. 4 Cir. 3] conviction; and (3) denying defendant's request for a jury instruction as to the limited use of the prior conviction.
Defendant first argues that the trial court erred in admitting at trial defendant's statement given to Det. Ricks after his arrest. Det. Ricks testified that he advised defendant of his Miranda rights and asked defendant if he wished to speak with him. Defendant replied in the negative. Det. Ricks asked defendant to answer one question for him, and defendant said " sure." Det. Ricks asked defendant whether he had ever been to Plaquemines Parish, and defendant replied in the negative, stating that the only place he had been to on the Westbank was Manhattan Boulevard.
Prior to trial, defendant filed an omnibus motion, including a motion to suppress the confession. Those motions came for hearing on April 4, 2012. A minute entry from that date reflects that the motion to suppress the confession was " moot," as were the motions to suppress the evidence and the identification. The record does not contain a transcript of that April 4, 2012 hearing. Four months later, on the
morning of the first day of trial, August 14, 2012, the State gave notice to defense counsel of its intent to introduce the statement made by defendant to Det. Ricks concerning whether he had ever been in Plaquemines Parish. Defense counsel objected, apparently to both the late notice and to the late disclosure of the statement. However, during the colloquy that followed, defense counsel read a portion of the open-file discovery materials previously provided to him, including the question by Det. Ricks as to whether defendant had ever been in Plaquemines Parish, and defendant's answer.
[2013-0265 La.App. 4 Cir. 4] In addition, the trial court stated that it recalled that the motion to suppress was waived at the motion hearing or declared moot by defense counsel. The trial court ultimately ruled that first morning of trial that the statement could not be used during the State's opening statement, but that it would be admissible at trial.
Even assuming defendant " waived" his right to have the trial court rule on a pretrial motion to suppress the statement, there is no definitive evidence that he waived his right to contest the introduction of any statement at trial.
On appeal, defendant argues that the State had the burden to prove that the statement was freely and voluntarily given, and was not a product of threats, promises, coercion, intimidation, or physical abuse. However, while La. R.S. 15:451 states that before a confession can be introduced in evidence, it must be affirmatively shown that it was free, voluntary, and " not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises," that rule applies " only to an admission of guilt, not to an acknowledgement of facts merely tending to establish guilt." La. R.S. 15:449. Additionally, the rule that a confession produced by threat or promise is inadmissible in evidence does not apply to admissions not involving criminal intent. La. R.S. 15:454.
Nevertheless, as the State concedes in its appellate brief, even where La. R.S. 15:451 is not applicable because the statement is not an admission of guilt, the State must still show that defendant was advised of his Miranda rights and voluntarily waived them prior to making a statement.
This court stated in State v. Butler, 2004-0880, p. 4 (La.App. 4 Cir. 1/27/05), 894 So.2d 415, 418, that:
The State must prove that the accused was advised of his Miranda rights and voluntarily waived these rights in order to establish the admissibility of a statement made during custodial interrogation. [2013-0265 La.App. 4 Cir. 5] State v. Green, 94-0887, pp. 9-10 (La.5/22/95), 655 So.2d 272, 280; State v. Labostrie, 96-2003, p. 5 (La.App. 4 Cir. 11/19/97), 702 So.2d 1194, 1197. A court must look to the totality of the circumstances surrounding the confession to determine its voluntariness. State v. Lavalais, 95-0320, p. 6 (La. 11/25/96), 685 So.2d 1048, 1053. The testimony of police officers alone can be sufficient to prove the defendant's statements were freely and voluntarily given. State v. Jones, 97-2217, p. 11 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 396. (Footnote omitted).
Det. Rick's testimony established that he advised defendant of his Miranda rights, and that defendant indicated he did not wish to talk to the detective. Det. Ricks immediately asked defendant if he could ask him one question; defendant said " sure." He then answered the question, replying in the negative as to whether he had ever been in Plaquemines Parish.
Det. Ricks did not testify that defendant invoked his Miranda right to
counsel, nor does defendant argue on appeal that he had invoked his right to counsel at the time he made the statement at issue. If an accused asserts his right to counsel, he 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 v. Arizona,451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378,(1981); State v. Abadie,612 So.2d 1, 4 (La. ...