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State v. Aguliar-Benitez

Court of Appeals of Louisiana, Fifth Circuit

December 10, 2018

STATE OF LOUISIANA
v.
NOE A. AGULIAR-BENITEZ AKA NOE AGUILAR-BENITEZ

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-797, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Anne M. Wallis Richard L. Olivier

          COUNSEL FOR DEFENDANT/APPELLANT, NOE A. AGULIAR-BENITEZ Gwendolyn K. Brown

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER JUDGE.

         In this appeal, defendant, Noe A. Aguliar-Benitez, seeks review of the denial of a motion to suppress an incriminating statement taken during a custodial interrogation, the denial of a motion for new trial based on the failure to suppress that incriminating statement, and the excessiveness of his sentences for convictions of attempted aggravated rape and sexual battery. For the following reasons, we affirm the denial of the motion to suppress and the denial of the motion for new trial, vacate defendant's sentences as unconstitutionally excessive, and remand to the district court for resentencing.

         Procedural History

         On May 15, 2014, a Jefferson Parish Grand Jury returned an indictment charging defendant, in count one, with aggravated rape of a victim under thirteen in violation of La. R.S. 14:42, [1] and in count two, with sexual battery of a child under thirteen in violation of La. R.S. 14:43.1. At his arraignment on May 27, 2014, defendant pled not guilty to both counts.

         On September 10, 2015, the district court held a hearing on defendant's motion to suppress a statement that he gave to Kenner Police after his arrest. Following the hearing, the district court denied defendant's motion from the bench.

         On November 9 and 10, 2015, defendant's trial was held before a twelve-person jury. After deliberations, the jury unanimously found defendant guilty on count one of the lesser charge of attempted aggravated rape of a victim under thirteen in violation of La. R.S. 14:42;14:27, and guilty as charged on count two of sexual battery of a victim under the age of thirteen in violation of La. R.S. 14:43.1. On November 13, 2015, defendant filed a motion for new trial, which was not considered before sentencing.

         On December 10, 2015, the district court sentenced defendant to the statutory maximum sentence on each conviction. As to his attempted aggravated rape conviction, the district court sentenced defendant to fifty years at hard labor without the benefit of parole, probation, or suspension of sentence. As to his sexual battery conviction, the district court sentenced defendant to ninety-nine years at hard labor without the benefit of parole, probation, or suspension of sentence. The district court ordered the two sentences to run concurrently.

         Two days later, on December 12, 2015, defendant filed a motion to reconsider sentence, a second motion for new trial, and a motion for appeal. On January 19, 2016, the district court ruled that the motion for new trial was moot. The district court granted defendant's motion for appeal on January 28, 2016. On May 16, 2016, after a hearing, the district court denied defendant's motion to reconsider sentence and defendant's second motion for new trial. On May 22, 2016, defendant filed an additional motion for appeal addressing the May 16, 2016 motion to reconsider and motion for new trial rulings. The district court granted defendant's motion for appeal on May 25, 2016.

         On December 7, 2016, in defendant's first appeal, this Court found that the trial court erred in failing to dispose of defendant's motion for new trial before sentencing. Therefore, this Court vacated defendant's sentences and remanded the case to the district court with instructions to dispose of defendant's pending November 13, 2015 motion for new trial before resentencing defendant. State v. Aguliar-Benitez, supra. This Court also vacated the district court's post-December 10, 2015 rulings in order to return the matter to its November 13, 2015 procedural posture at the time defendant filed his motion for new trial. Id.

         After remand on January 26, 2017, the district court denied defendant's motion for new trial pending since November 13, 2015. On February 23, 2017, the district court resentenced defendant to the statutory maximum sentences for both convictions. As to his conviction for attempted aggravated rape of a victim under thirteen, defendant was again sentenced to serve fifty years at hard labor. As to his conviction for sexual battery of a child under thirteen, defendant was again sentenced to ninety-nine years at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant was given credit for time served, and the district court ordered the two sentences to be served concurrently. Defendant filed a motion to reconsider sentence on February 24, 2017, which was denied by the court on April 20, 2017. This timely appeal follows.

         Facts

         Sometime in mid-to-late October 2013, E.M.P., [2] an eight-year-old juvenile, told her mother, M.P., that in June 2013, defendant-a houseguest living in the family home[3]-had touched her legs, and that she did not want defendant to live with the family any longer. Concerned, M.P. continued asking her daughter about defendant touching her. Eventually, E.M.P. told her mother that defendant touched her vagina.

         While defendant was living with E.M.P.'s family, defendant and E.M.P. developed a close relationship. She liked that he was living in the home with her family, and enjoyed playing with defendant.[4] Their relationship changed, according to E.M.P., after "[defendant] started touching me in my private part, and then I started not liking him." E.M.P testified that she did not tell anyone of the abuse, because defendant told her it was their "secret."

         M.P. testified that, after E.M.P. disclosed the abuse to her, she noticed a change in E.M.P.'s behavior. Before the incident, she described her daughter as "a very sweet girl," but after the abuse she "seemed sad."

         After learning of defendant's abuse, M.P. testified that she told her husband, R.M., that defendant touched E.M.P's vagina. R.M. testified that he asked his wife to take their children away from the house, while he asked defendant whether he touched his daughter. Under questioning, defendant became scared. R.M. told defendant he could no longer live in the home and punched him in the face. While the confrontation was taking place, E.M.P. testified that the rest of the family waited in a parking lot of a nearby Winn-Dixie and prayed.

         Thereafter, M.P. took E.M.P. to her pediatrician, who recommended that she be taken to Children's Hospital for an evaluation. On October 21, 2013, E.M.P. was evaluated at Children's Hospital, and the Kenner Police Department was notified. Officer Paul Carmouche was dispatched to the hospital to talk to the family and made an initial report. The initial report identified defendant as the perpetrator. Later, Detective Joseph McRae was assigned to complete the investigation.

         On November 9, 2013, Ann Troy, a forensic pediatric nurse practitioner who qualified at trial as an expert in childhood emotional, physical, and sexual abuse, and the delayed disclosure of that abuse, examined E.M.P. and performed a forensic interview regarding the June 2013 incident.

         Ms. Troy concluded that E.M.P. had suffered child sex abuse. According to Ms. Troy's testimony and diagrams marked by E.M.P. during the interview and later admitted at trial, E.M.P. told Ms. Troy defendant touched her vagina. Further, E.M.P. told Ms. Troy that during the June 2013 incident defendant pulled her pants to the side and put his penis into her vagina. E.M.P told Ms. Troy that her brother was in the room when the incident occurred. Ms. Troy testified that she found E.M.P. to be clear and spontaneous during their interview, which was, in her opinion, indicative of truthfulness.

         Ms. Troy also performed a physical examination of E.M.P. The exam did not reveal any injury to E.M.P.'s vagina. Ms. Troy testified that this is a normal finding in children who have been sexually abused, because young girls' bodies are resilient and can quickly heal without showing evidence of penetration.

         On December 19, 2013, E.M.P. subsequently underwent a forensic interview with Brittney Bergeron of the Jefferson Parish Children's Advocacy Center, which was video recorded and played for the jury at trial. During that interview, E.M.P. recounted the details of her abuse. E.M.P. explained that defendant was living at the family home, and that she liked defendant, until he "did things [she] didn't like." Regarding the June 2013 incident, E.M.P. said she and defendant were watching television on the sofa in the living room when defendant started touching her leg. E.M.P told defendant to stop touching her, but defendant continued to touch her, including her "private part." E.M.P. told Ms. Bergeron that defendant pulled her shorts to the side, pulled his pants down, and touched "the skin of his private" against her private. During the interview E.M.P. could not recall whether defendant put "his private inside her private." E.M.P. explained that she wanted to kick defendant in his arm-which was in a cast after a work-related injury-but she feared a kick to defendant's arm would kill him.

         E.M.P. recounted that defendant had touched "her private part" on other instances. E.M.P. told Ms. Bergeron that she thought defendant attempted to touch her on the upper thigh, but E.M.P. went outside the house, where two of her father's co-workers were, to avoid defendant's touching her. E.M.P. stated during the interview that she did not immediately tell her mom about defendant touching her, "because I didn't know how to tell [her]."

         At trial, E.M.P. testified that she first told her mother in October 2013 that defendant had touched her. E.M.P. further testified that defendant touched her vagina with his hand and his private on more than once occasion, and at some point in time he started "licking [her] private part."

         After receiving E.M.P.'s forensic interview report, on January 24, 2014, Detective McRae with the Kenner Police Department located defendant and thereafter interrogated him at the Kenner Police Department. According to his trial testimony, Detective McRae arrived at the address where he believed defendant was living at about 6:10 AM on January 24, 2014. When Detective McRae arrived at the residence, he asked a neighbor, a Hispanic male, whether defendant lived in the building. The neighbor said "yes," and let Detective McRae into the building. After entering the building, Detective McRae found defendant asleep in his bedroom. Because defendant does not speak English, the man who let Detective McRae into the building translated the initial conversation between defendant and Detective McRae. Detective McRae introduced himself as a member of the Kenner Police Department, informed defendant that he was there to discuss an investigation of sexual abuse of a minor, and asked whether defendant would like to make a statement at the Kenner Police Department. Defendant voluntarily agreed to go to the police station with Detective McRae and sat un-handcuffed in the front seat of Detective McRae's unmarked Ford Taurus during the ride.

         Upon arrival at the Kenner Police Department, Detective McRae requested an interpreter, and Officer Cesari Cruz was assigned to interpret the interview.[5]Before the interview began, Detective McRae and Officer Cruz used a Kenner Police Department Advice of Rights Form to notify defendant of his Miranda[6]rights.[7] Detective McRae also notified defendant that he was under arrest relative to a suspected aggravated rape of a victim under the age of thirteen. The form listed defendant's rights in Spanish and English and was read aloud in Spanish by Officer Cruz. Defendant checked a box on the form indicating that he understood his rights and checked an additional box indicating that he did not wish to waive his rights.

         After defendant invoked his right to counsel, both Detective McRae and Officer Cruz testified that they cut off questioning regarding the crime. Both testified that after defendant invoked his right to counsel, they explained to defendant the facts of the case and the charges against him. After learning the allegations made against him, Detective McRae testified that defendant said something like, "you know, there's demons and, you know, I did something."[8]

         After hearing of defendant's "demons," Detective McRae testified that he told defendant, "I can't talk about the investigation as in question and answer because you already told me you didn't want to speak without a lawyer. However, I can tell you about the investigation."[9] At this point, defendant-according to Detective McRae and Officer Cruz-said, "No, I'll talk," and said he wished to speak to the officers without a lawyer present. Defendant agreed to change the mark on the Advice of Rights Form from not wishing to waive his rights to "Waiving his/her rights," and re-initialed the form to show he had changed his mind.[10] Officer Cruz testified that there was no temporal break between defendant's invocation of his right to counsel and notifying defendant of the evidence against him, and Detective McRae testified that defendant reengaged the officers without being coerced.[11]

         After defendant decided to speak to the officers, the officers began an audio recording as defendant gave his account of what happened. That recorded statement was played to the jury at trial. During the interview, defendant confirmed he originally did not want to speak to the officers without an attorney but voluntarily changed his mind, stating that it is better to tell the truth than continue lying.

         Defendant told police he was watching television in the living room with E.M.P. while her parents were home and her brother was in the kitchen. E.M.P. asked to borrow defendant's cell phone to play a game. When E.M.P. returned the phone to defendant, he began touching her right leg, and defendant thought he wanted to make love to her. The touching progressed to defendant taking off his pants to mid-way down his leg, pushing E.M.P.'s shorts to the side, rubbing his penis skin-to-skin against E.M.P.'s vagina, and masturbating. Defendant told the officers he ejaculated on E.M.P.'s stomach and cleaned his semen off with her panties. Defendant told officers that this was the only time he touched E.M.P.

         Discussion

         Assignment of Error One-Suppression of Statement Made to Police

         Defendant argues since there was no temporal break between asserting his right to remain silent and to consult with a lawyer before answering any questions and detectives' discussion of the victim's preliminary disclosures to police, defendant's subsequent incriminating statement was the product of police coercion-in violation of defendant's Miranda rights-and should have been suppressed by the district court. The State contends that defendant's statement to Detective McRae and Officer Cruz was voluntary and, thus, not barred by the Miranda rule. Further, the State contends that informing defendant of incriminating evidence does not constitute interrogation in the context of the Fifth Amendment. Because defendant voluntarily and intelligently changed his mind and decided to give a statement, his statement was not in violation of Miranda and the district court properly denied the motion to suppress.

         The district court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Poupart, 11-710 (La.App. 5 Cir. 2/28/12), 88 So.3d 1132, 1140, writ denied, 12-705 (La. 10/8/12), 98 So.3d 867. In determining whether the trial court's ruling on the motion to suppress is correct, an appellate court is not limited to the evidence presented at the suppression hearing; it may also review relevant evidence presented at trial. Id. The issue on appeal is whether Detective McRae and Officer Cruz continued to interrogate defendant after he asserted his right to counsel.

         The record shows that defendant was advised of his rights in both English and Spanish and that he indicated he did not want to make a statement without a lawyer present. Once defendant invoked his right to counsel, Detective McRae and Officer Cruz testified they did not ask any additional questions, but, rather, explained to defendant the disclosures the victim had made to police at Children's Hospital. After hearing the evidence against him, defendant told Detective McRae and Officer Cruz "you know, there's demons and, you know, I did something," and the officers told defendant they could not discuss the case in a question-and-answer format, because he requested a lawyer. At that point, according to the officers, defendant changed his mind and stated that he wished to make a statement without a lawyer present.

         In Miranda v. Arizona, supra, the Supreme Court found that when a suspect in a custodial interrogation indicates a desire to speak to an attorney, all questioning by police must cease. Miranda's progeny has affirmed its basic holding and has provided guidance to law enforcement regarding what is necessary to protect the constitutional rights of the accused. After law enforcement informs the suspect of his right to silence, the suspect's invocation of that right must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 332, 46 L.Ed.2d 313, 321 (1975). Under the Miranda rule, the suspect controls the custodial interrogation, with the ability to terminate the questioning by invoking his right to silence and consulting with a lawyer. Id.

         For law enforcement to "scrupulously honor" the suspect's right to cut off questioning, interrogation cannot be resumed by further police-initiated questioning or other coercive police tactics; rather, after invocation of the right to counsel, interrogation may only resume if the suspect initiates further communication or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1883-85, 68 L.Ed.2d 378 (1981); see also Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489, 498 (1990) ("In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney."); State v. Abadie, 612 So.2d 1, 4 (La. 1993), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed 2d 35 (1993) ("[W]hen an accused prior to 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; and that such an 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 police.").

         However, under Fifth Amendment jurisprudence, nothing prevents an accused party "from changing his mind and giving a statement after he has previously declined to do so, so long as the statement is voluntary and intelligently made." State v. Daniel, 378 So.2d 1361, 1366 (La. 1979), citing Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The Miranda rule is designed to protect an accused from giving a tainted statement under pressures of interrogation by police regardless of whether the pressure is from police badgering, overreaching, or subtle but repeated efforts of law enforcement to influence the suspect to waive his right to silence. State v. Hobley, 98-2460 (La. 12/15/99), 752 So.2d 771, 788 (citing Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d ...


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