Opinion
2014 KA 1492
07-31-2015
STATE OF LOUISIANA v. RONALD MAURICE VAIL
Scott M. Perrilloux District Attorney and Patricia Parker Amos Assistant District Attorney Amite, LA Attorneys for Plaintiff/Appellee State of Louisiana Charles V. Genco D. Mark Valentine Corey D. Bunk Amite, LA Attorneys for Defendant/Appellant Ronald Vail
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21ST Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
No. 1202116
The Honorable Robert H. Morrison, III, Judge Presiding Scott M. Perrilloux
District Attorney
and
Patricia Parker Amos
Assistant District Attorney
Amite, LA
Attorneys for Plaintiff/Appellee
State of Louisiana
Charles V. Genco
D. Mark Valentine
Corey D. Bunk
Amite, LA
Attorneys for Defendant/Appellant
Ronald Vail
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Ronald Maurice Vail, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. The defendant entered a plea of not guilty. The trial court denied the defendant's pretrial motion to suppress statements and evidence. Following a trial by jury, the defendant was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, raising error as to the sufficiency of the evidence to support the conviction and the denial of the motion to suppress. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
On April 22, 2012, at approximately 11:30 p.m., the police were dispatched to 42308 Jerome Drive in Hammond, Louisiana, to investigate a reported shooting at the residence. Sergeant John Eady of the Tangipahoa Parish Sheriff's Office was the first police officer to arrive on the scene of the shooting and observe two males standing under the carport. Lisa Winn hysterically approached the police unit indicating that the victim, Joseph Daigle, Jr. (her boyfriend with whom she lived and had children), had been shot. Sergeant Eady drew his weapon, unsure as to the identity and location of the shooter. Winn and the male subjects led him inside the residence, indicating that the victim was inside. The body of the already deceased victim was located face down on the floor with his head toward the officer, just before the kitchen entry. Sergeant Eady was advised that the shooter fled out of the back door located next to the kitchen. As Sergeant Eady stepped out to the backyard, he identified himself and encountered the defendant. After the defendant was apprehended, the police recovered the gun. The defendant admittedly shot the victim after a dispute concerning Winn. The forty-two year old victim suffered a single fatal gunshot wound to the chest.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues that the evidence is insufficient to support his conviction for second degree murder. The defendant specifically claims that the element of specific intent was not proven because the gun accidentally went off when it was brandished in self-defense. Thus, the defendant argues that a reasonable trier of fact could not have concluded beyond a reasonable doubt that the evidence excluded the hypothesis of innocence that the gun was accidentally discharged in an attempt to end the conflict without violence. The defendant lists several factors in support of his argument that a reasonable person would have believed that he was in imminent danger of losing his life or receiving great bodily harm. Specifically, the defendant notes that he was lawfully at home at the time of the shooting. The defendant also claims that he was in fear of an imminent fight, specifically noting that the victim threatened to "kick his ass," offered to take it outside to talk to him like "a man," and was forty pounds heavier, an inch or two taller, and almost two decades younger than the defendant. The defendant also argues that while he was not required to do so by law, citing La. R.S. 14:20(D), he was unable to retreat because the victim positioned himself in a manner to prevent the defendant's escape. Further, the defendant notes that the victim had a conviction for beating a man with a baseball bat and had a tattoo of a grim reaper.
The defendant also notes that in its closing argument, the State indicated that the jury could consider retreat as a factor in determining if the homicide was committed in self-defense. The defendant did not object to any portion of the State's closing argument and has not raised trial error in that regard.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. La. Code Crim. P. art. 821. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.
The crime of second degree murder, in pertinent part, "is the killing of a human being: (1)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La. R.S. 14:30.1(A)(1). "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.
When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. Louisiana Revised Statute 14:20(A)(1) provides that a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. On appeal, the relevant inquiry is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 939, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith. See La. R.S. 14:21.
At the time of the offense, the defendant was living with State witness, Bruce Daigle. The victim was the son of Daigle's brother, Frank. Daigle testified that his shift job consisted of working offshore in the Gulf of Mexico on a supply boat for fourteen days straight followed by seven days off. Two or three years before the shooting, when Daigle was looking for a contractor to put a roof on his house, a friend introduced him to the defendant. After the job was complete, the defendant needed somewhere to stay and Daigle allowed him to move in with him in exchange for the defendant taking care of Daigle's brother Eric, who had suffered from a heart attack and an aneurysm. On the day in question, before the shooting, Daigle was in his backyard consuming alcohol, as he often did while off from work. The defendant was inside using the laptop computer in the front room. The victim called and Daigle invited him over to drink beer with them.
Bruce Daigle will also be referenced as "Daigle" while his nephew Joseph Daigle is referenced as "the victim" herein.
According to the record, Frank Daigle was not present during the offense and did not testify at the trial.
The victim and Lisa (often referred to as the victim's wife) arrived at the residence sometime that evening when Daigle was still in the backyard. Present at that time were Daigle, the defendant, Eric, the victim, and Lisa. After Daigle told the victim to bring more beer outside, the victim came out with the beer and stated, "I don't know what's wrong with your partner in there, but I don't appreciate the way he was looking at my old lady." Daigle went inside and questioned the defendant. After the defendant indicated that he only looked up to see who was passing in front of him, Daigle went back outside. Daigle went inside again when he received a phone call from a friend. Daigle had difficulty hearing his friend due to the volume of the television in the background. In an attempt to block out the television, he covered his ear that was away from the telephone. As he turned around, he saw the victim fall on the floor. At that point, he saw the defendant holding the gun. Daigle immediately discontinued the call with his friend and called 911. When he turned back around, the defendant had the gun pressed against Lisa's head. Daigle walked over to the defendant, grabbed the barrel of the gun, and told the defendant to let go of the weapon. The defendant complied and walked outside to the backyard as Daigle took control of the weapon. Daigle slid the gun down the hallway to his bedroom to keep it away from the occupants.
Daigle noted that a couple of months before the shooting, the defendant asked him to leave one of the guns from his gun safe in the defendant's possession so that he could protect the home. Noting that the home had been robbed on two occasions before the defendant moved in, Daigle allowed the defendant to keep the gun in his bedroom. Daigle confirmed that he was intoxicated when the police arrived and noted that he did not provide a statement until one or two days after the shooting, when he started to remember more details. On cross-examination, Daigle initially denied that the victim told him he was going to "kick [the defendant's] butt," or anything to that effect. After being shown his statement to the police, he confirmed that the victim stated, "[W]hat's wrong with him? If he mouths off again, I'm going to kick his ass." Concerning discrepancies in the information he relayed to the police, Daigle confirmed that he initially thought he was not in the room just before the shooting, but later remembered being present. At the time, Daigle was seated on the sofa in the living room with his back turned to the defendant, who was standing about ten to thirteen feet away, toward the kitchen. Daigle testified that he could not hear any words that were being exchanged between the defendant and the victim, but noted that he was not alarmed as they were not yelling at each other.
Sergeant Eady testified that when he approached the defendant, he smelled the odor of alcohol. He noted that the defendant, however, did not seem intoxicated to the point that he would be unaware of the circumstances and his speech was not slurred. He also testified that after the defendant was advised of his rights, the defendant stated, "I need my attorney." Sergeant Eady confirmed that the owner of the home, Bruce Daigle, led him to the location of the weapon after the defendant was apprehended. Detective Thomas Wheeler of the Tangipahoa Parish Sheriff's Office testified that when he arrived on the scene, he approached the defendant, who had already been apprehended. He further testified as follows, "My conversation, I walked up to him and I believe it was, what's up. He kind of -- a smile come over his face and, at that time, he said, he got in my face. He said, I'm old, he's young, I shot him." Detective Dale Athmann and Sergeant Gary Baham, both also of the Tangipahoa Parish Sheriff's Office, were among the officers who arrived to process the scene, take photographs, and collect evidence. Detective Athmann noted that, other than the gunshot wound, he did not observe any visible signs of trauma on the victim's body. As indicated by Daigle, the gun was located partially beneath Daigle's bed. The bed skirt was already raised and the gun was exposed in plain sight. Sergeant Baham noted that the gun had a "hair-type trigger." On cross-examination, he clarified that such a weapon was easily discharged and had to be handled with care. Pat Lane, the State's firearm identification expert witness, explained that even after being cocked, the trigger of the gun, which would have a lighter and shorter distance to travel, would still have had to be pulled in order for the gun to be fired.
Dr. Frasier McKenzie of the Tangipahoa Parish Coroner's Office performed the autopsy in this case. When asked if he tested the victim's shirt for gunshot residue to determine if the gunshot was a close-contact wound, he stated that the victim was still wearing a shirt at the time of the autopsy. Although the doctor did not specifically test the shirt for gunshot residue, he noted that he examined the shirt and did not note in his report any visible marks of gunshot residue. He testified that in his professional opinion, the victim's clothes did not indicate a close-contact wound.
Lisa Winn, the final State witness, testified that when she and the victim walked into the kitchen of the residence (before the shooting), the defendant, "looked [her] up and down." She further testified that the defendant then told the victim, "that's a nice piece of ass you got there, Joe." According to Winn, the victim responded by stating, "Ron, we're not here for all that." The defendant indicated that he was only joking. Winn went outside and when she reentered the residence to use the restroom, the victim followed her. As she walked down the hallway, the defendant stated, "that's a nice piece of p___ walking down the hallway." At that point, the victim told the defendant not to look at, speak to, or disrespect his woman, and they went back outside. About an hour later, when Winn had to use the restroom again, the defendant made another inappropriate comment. According to Winn, at that point, the victim stated, "[L]ook, man, if I wanted to fight with you or anything, I would have done that in the get-go ... why don't you just come outside and talk -- you know, come talk to me like a man because you can't respect my woman." At that point, the defendant jumped off of the sofa. Winn stated that she thought the defendant was going to charge the victim. She stated that the victim had a knife in his pocket but did not pull it out or threaten the defendant. She then heard a loud popping noise and saw the victim lean over. She reiterated that the victim never threatened the defendant. Winn was also briefly called to the stand by the defense and at that point she confirmed that the victim was involved in a previous incident "a long time" ago wherein he felt threatened by an individual and hit the person with a bat. She stated that she was not aware of any other such incidents involving the victim, and reiterated that the victim was not an aggressive person.
The defendant's sister, Hedara Stedman, testified at the trial as a defense witness. According to her testimony, Stedman stated that she called the defendant at approximately 10:30 on the night of the shooting and heard a man yelling in the background. She stated that at the time, she heard a male in the background yelling. She further testified that she told her brother that he needed to calm the individual down, and she heard the defendant attempting to do so. She testified that she could not hear what the male subject was saying and did not know his identity.
The defendant also testified at the trial. He denied making any comments or having any dispute with the victim or Winn when they arrived at the residence. He stated that while he was on the telephone with a female friend, the victim entered the kitchen and told him he could not stay in the house. The defendant did not respond and the victim walked back out of the kitchen. He noted that as time went by, the victim and Winn came back and forth in the residence but did not say anything to the defendant. Later, when the defendant was on the telephone with his sister, a call for Bruce Daigle interrupted the line. While Bruce Daigle was using the telephone, the victim falsely accused the defendant of making a comment about "his old lady." The defendant further testified that he was baffled as to why the victim "started the whole thing" and "fabricated" the accusations. According to the defendant, he asked the victim, "what's up," and the victim began approaching him. The defendant reached into the sofa cushion and pulled out the gun. The defendant further testified, "Whenever I sat there, I did -- I pulled the gun, and I had my finger on the trigger, and the gun stays -- there's a bullet in that chamber all the time. I ain't -- it would be like a hammer if it wasn't. That gun didn't go off until that man made contact with me. I was protecting myself. He come at me." The defendant noted that he was afraid, and that the victim was younger and bigger than him. He added, "I cocked it just like I said, and I held it there," reiterating that the gun did not go off until the victim made physical contact with him.
As noted, the victim was forty-two years old and according to the indictment, the defendant was fifty-nine years old at the time of the offense. The trial testimony and autopsy further indicated that the victim was six feet tall and weighed approximately two hundred pounds. According to the police report, the defendant was six feet tall and weighed one hundred and sixty pounds.
We note that at the trial the defense also called to the stand the victim's uncle, Eric Daigle (Bruce Daigle's brother whom the defendant cared for while living at the Daigle residence). Eric Daigle's brief testimony indicated that he was in the backyard when the incident occurred and did not recall any pertinent information.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Williams, 804 So.2d at 939. The guilty verdict in this case indicates the jury rejected the defendant's claim that he shot the victim in self-defense. Much of the trial testimony indicated that the defendant was the aggressor in the incident, and that the shooting was not accidental. Considering the evidence presented during the trial, the jury could have reasonably concluded that the victim did not pose an imminent threat. The jury could have reasonably concluded that the victim was not attacking the defendant before the defendant shot him.
A rational juror could have found the State established beyond a reasonable doubt that the defendant did not act in self-defense. Thus, we find no error in the jury's rejection of the defendant's claim of self-defense. Accordingly, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Furthermore, an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam). We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder. Due to the foregoing conclusions, assignment of error number one lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant argues that the trial court erred in denying his motion to suppress statements and evidence. The defendant contends that at the time of his arrest he asserted his right to counsel before and after his Miranda rights were given. The defendant claims that although he articulated that he would not make any statement without his attorney, Detective Wheeler continued questioning him after he was handcuffed. The defendant argues that any statement made after his assertion that he wanted to speak only to his counsel should be suppressed. Regarding the evidence, namely the gun, the defendant contends that those who lived at the home did not consent to the search, that the search exceeded the necessary scope to ensure police officer safety or to determine if the victim needed assistance, consent was not implied, and that the police had the opportunity to seek a warrant.
A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La. Code Crim. P. art. 703(A). The Fifth Amendment of the United States Constitution provides the accused with the right against self-incrimination. The State bears the burden of proving that an accused who makes an inculpatory statement or confession during custodial interrogation was first advised of his constitutional rights and made an intelligent waiver of those rights. State v. Davis, 94-2332 (La. App. 1st Cir. 12/15/95), 666 So.2d 400, 406, writ denied, 96-0127 (La. 4/19/96), 671 So.2d 925. See also La. Code Crim. P. art. 703(D). In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court promulgated a set of safeguards to protect the therein delineated constitutional rights of persons subject to custodial police interrogation. The warnings must inform the person in custody that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In addition to showing that the Miranda requirements were met, in order to introduce into evidence a defendant's confession, the State must affirmatively show that the confession was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451.
The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. State v. Payne, 2001-3196, (La. 12/4/02), 833 So.2d 927, 934, citing Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). The Supreme Court in Miranda explained what is meant by custodial interrogation: the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. 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. Payne, 833 So.2d at 938. In Miranda, the United States Supreme Court specifically held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. See Miranda, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. The United States Supreme Court instructed that if the 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." Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612.
The determination of whether or not a suspect "actually invoked" the right to counsel is an objective inquiry. If a suspect makes a reference to an attorney that is ambiguous or equivocal, such that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the officer is not required to cease questioning. See Davis v. U.S., 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). If the suspect articulates his desire to have counsel present "sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney," the questioning must stop. Davis, 512 U.S. at 459, 114 S.Ct. at 2355. In Davis, the court indicated it would often be good police practice for interviewing officers to clarify whether or not a suspect actually wants an attorney present in those situations where the suspect makes an ambiguous or equivocal request for counsel. Davis, 512 U.S. at 461, 114 S.Ct. at 2356.
If before or during interrogation an accused 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. 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 the police. Edwards v. Arizona, 451 U.S. at 484-485, 101 S.Ct. at 1884-85.
The Supreme Court in Miranda also stated, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. When a defendant exercises his privilege against self-incrimination, the validity of any subsequent waiver depends upon whether the police have scrupulously honored his right to remain silent. State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 739, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). The Supreme Court identified the critical safeguard in the right to remain silent as a person's "right to cut off questioning." Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. Mosley, 423 U.S. at 103-04, 96 S.Ct. at 326.
The exercise of the right to remain silent does not act as a complete bar to further questioning. Whether the police have "scrupulously honored" a defendant's "right to cut off questioning" is a determination made on a case-by-case basis under the totality of the circumstances. See Mosley, 423 U.S. at 104-06, 96 S.Ct. at 326-28; Taylor, 838 So.2d at 739; State v. Brooks, 505 So.2d 714, 722 (La.), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). Factors going into the assessment include: (1) who initiates further questioning, although significantly, the police are not barred from reinitiating contact; (2) whether there has been a substantial time delay between the original request and subsequent interrogation; (3) whether Miranda warnings are given before subsequent questioning; (4) whether signed Miranda waivers are obtained; (5) whether the later interrogation is directed at a crime that had not been the subject of the earlier questioning; and (6) whether or not pressures were asserted on the accused by the police between the time he invoked his right and the subsequent interrogation. See Taylor, 838 So.2d at 739; Brooks, 505 So.2d at 722.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. It is well settled that a search warrant is required unless one of the narrowly drawn exceptions to that requirement is present. A valid consent to search is such an exception. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). The consent to search is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. Common authority is based on "mutual use of the property by persons generally having joint access or control for most purposes." Matlock, 415 U.S. at 171 n.7, 94 S.Ct. at 993 n.7. The State bears the burden of proving that the consent has been freely and voluntarily given. State v. Owen, 453 So.2d 1202, 1206 (La. 1984); State v. Dawson, 2014-0326 (La. App. 1st Cir. 9/24/14), 154 So.3d 574, 577. In addition to being voluntary, the consent must be valid. That is, it must be given by a person possessing a common authority over or a sufficient relationship to the effects or the premises which the police are seeking to inspect. Matlock, 415 U.S. at 170-72, 94 S.Ct. at 993; State v. Bodley, 394 So.2d 584, 588 (La. 1981).
A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La. App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. Correspondingly, when a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 281. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. A trial court's finding regarding the voluntariness of the consent to search is a factual matter, and, as such, is entitled to deference and given great weight on appellate review. State v. Wilson, 467 So.2d 503, 518 (La. 1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). In determining whether the ruling on the defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223, n. 2 (La. 1979).
At the hearing on the motion to suppress, Sergeant Eady (a deputy at the time of this hearing) testified that he was on duty when he received the dispatch to respond to a disturbance with shots fired. When he arrived on the scene, Winn approached his unit in a hysterical manner stating that her husband had been shot. Two men in the carport pointed to the carport entry door, where Sergeant Eady entered the home and observed the victim laying on the floor face down. Bruce Daigle, the owner of the home, pointed toward the back door. Sergeant Eady exited the door and saw the defendant standing in the yard. Sergeant Eady instructed the defendant to get on the ground and the defendant responded with expletives, indicating he was urinating and would not comply. The defendant failed to comply with a follow-up command and Sergeant Eady forced him to the ground, handcuffed him, and inquired as to the whereabouts of the firearm. Sergeant Eady testified that in response the defendant stated, "you don't look like my attorney." Sergeant Eady told the defendant that he was correct and restrained the defendant as he advised him of his Miranda rights.
Sergeant Donald Hoover of the Hammond Police Department arrived and began securing the scene. When Deputy Sean Scott arrived on the scene, he took over the apprehension of the defendant while Sergeant Eady reentered the home and spoke to Sergeant Sherrod Finn, who had also arrived at the scene. Sergeant Eady testified that while they were in the kitchen, Bruce Daigle informed the officers that the defendant tossed the gun down the hall. Sergeant Eady added, "The way he said it, he implied where it was and for us to go look." Sergeant Eady stepped into the hallway, knelt down, and used his flashlight to look down both ends of the hall and observed a firearm laying on the floor underneath the bed located on the right far end of the hall. Sergeant Eady did not retrieve the weapon but reported his observations to the detectives who arrived on the scene.
As previously stated herein, during his trial testimony Bruce Daigle testified that he tossed the gun down the hallway to his bedroom. --------
Detective Wheeler, the on-call duty detective at the time of the dispatch to the scene, also testified at the hearing. Sergeant Eady briefed Detective Wheeler when he arrived on the scene. When Detective Wheeler approached the defendant he asked, "[W]hat's going on?" The defendant responded, "[H]e got in my face, and I'm young and I'm old - he's young and I'm old, and I shot him." Detective Wheeler discontinued the interaction and waited for the lead detective, Detective Dale Athmann, to arrive. On cross examination, Detective Wheeler testified that he was not attempting to elicit any statements regarding the shooting. Detective Wheeler stated that he was not aware of the defendant's statement (in response to the inquiry on the whereabouts of the gun) that Sergeant Eady was not his attorney. Detective Wheeler further stated that he was not aware of the fact that the defendant had already been informed of his Miranda rights.
Detective Athmann testified that upon his arrival at 12:38 a.m. (by then, April 23), he immediately began assessing the scene. When asked if Bruce Daigle allowed him to go throughout the home, he stated, "Yes. He cooperated fully." Detective Athmann further noted that Daigle was the one who called 911 after the shooting. He stated that Detective Gary Baham retrieved the firearm. On cross-examination, Detective Athmann confirmed that the defendant also resided in the home but stated that the firearm was located in Mr. Daigle's bedroom. When asked for clarification, Detective Athmann noted that Daigle cooperated with every aspect of the investigation in general, including but not limited to the search of the residence. He admitted that Daigle did, however, provide some discrepancies when relaying specificities during factual accounts. When asked if anyone obtained the defendant's permission to search the residence, Detective Athmann responded, "Mr. Daigle informed us that he was the homeowner; and, therefore, you know, he gave us latitude throughout the house." He subsequently confirmed that the defendant's permission was not requested or obtained.
The trial court denied the motion to suppress without giving reasons. An additional pretrial hearing was held after the defendant filed a motion to suppress and/or motion in limine regarding his statements at the time of the arrest. Sergeant Eady testified similarly to his testimony at the initial motion to suppress hearing, but specificities were elicited. He stated that when he approached the defendant and told him to show his hands, the defendant was standing with his back to the officer and specifically told the officer, "F___ you, I'm pissing." He confirmed that the defendant's hands were in front of him at the time, that at that moment he was unsure if the defendant had a firearm, and that he did not see or hear a stream of urine. When asked again to show his hands, the defendant stated, "F___ you, shoot me then." At that point, Sergeant Eady approached the defendant from the rear, flipped him over, and forced him to the ground. He wrestled the defendant's hands from underneath him, handcuffed him, and advised him of his Miranda rights. Sergeant Eady testified as follows regarding what he specifically advised the defendant:
I advised he had the right to remain silent, that anything he said would be used against him in a court of law. He had the right to an attorney. He had the right to have an attorney present during any and all questioning. At any time during questioning he had the right to stop answering questions until his attorney was present. If he could not afford an attorney, one would be appointed to him by the Court.
Sergeant Eady testified that he then inquired about the gun and at that point the defendant stated that he needed his attorney. Sergeant Eady stated that the defendant was very coherent, and Sergeant Eady did not detect any slurred speech, though he was later informed that the defendant had consumed alcohol that day. The trial court granted the motion in limine to exclude the use of vulgar language by the defendant, but otherwise denied the motion. At the trial, Daigle confirmed that the residence in question was his and that he allowed the defendant to live with him because he needed somewhere to stay after working on Daigle's roof.
Assuming in this case the defendant sufficiently clearly articulated his desire to have counsel present, Sergeant Eady discontinued questioning once the defendant made the reference to his attorney. When Detective Wheeler approached and generally asked what was going on, he did not elicit the response given by the defendant. Clearly Detective Wheeler's greeting did not constitute police-initiated, custodial interrogation. Because the presence of both a custodial setting and official interrogation is required to trigger the Miranda right-to-counsel prophylactic, absent one or the other, Miranda is not implicated. Payne, 833 So.2d at 934. As noted, the police are not barred from reinitiating contact and there was no pressure placed upon the defendant to make a statement regarding the offense. The police scrupulously honored the defendant's right to cut off questioning. The defendant decided to make the unsolicited statement despite being fully advised of and was aware of his Miranda rights. Considering the question of the existence and/or voluntariness of consent, we note that the action and words of Bruce Daigle were reasonably construed by the officers as permission for them to enter and search the residence. See State v. Massey, 94-1388 (La. App. 4th Cir. 4/26/95) 653 So.2d 1372, 1374-75. Daigle pointed to and verbally indicated the location of the defendant and the gun when the officers arrived and gave them full access to the residence. There is no evidence nor any allegation of threats, promises, pressure, duress or coercion of any kind that would obviate the voluntariness of Daigle's consent. We find that the trial court did not err or abuse its discretion in denying the defendant's motion to suppress the statements and evidence. Considering the foregoing, we find no merit in assignment of error number two.
CONVICTION AND SENTENCE AFFIRMED.