Opinion
2015 KA 1155
12-23-2015
STATE OF LOUISIANA v. FELIX ADAMS, JR.
Warren L. Montgomery Covington, LA and Kathryn W. Landry Baton Rouge, LA Counsel for Appellee, State of Louisiana Jane L. Beebe New Orleans, LA Counsel for Defendant, Felix Adams, Jr.
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court
In and for the Parish of St. Tammany, State of Louisiana
Trial Court Number 540658
Honorable Allison H. Penzato, Judge Presiding
Warren L. Montgomery
Covington, LA
and
Kathryn W. Landry
Baton Rouge, LA Counsel for Appellee,
State of Louisiana Jane L. Beebe
New Orleans, LA Counsel for Defendant,
Felix Adams, Jr. BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
The defendant, Felix Adams, Jr., was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1 (count one); armed robbery, a violation of LSA-R.S. 14:64 (count two); and obstruction of justice, a violation of LSA-R.S. 14:130.1 (count three). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on all counts. The defendant was sentenced to life imprisonment without the benefit of parole on count one and to twenty years imprisonment at hard labor on count three, to be served concurrently with the sentence imposed on count one. The minutes reflect that he filed motions for new trial and postverdict judgment of acquittal, both of which were denied.
Trenton J. Johnson, Darion M. Causey, Kishion Griffin, and Bobby C. Isidore were charged by the same indictment, but were not tried with the defendant.
Count two was quashed after trial, pursuant to the defendant's motion to quash.
He now appeals, arguing three assignments of error. For the following reasons, we affirm the defendant's convictions on counts one and three and his sentence on count three. We amend the defendant's sentence on count one to reflect that it be served at hard labor and, as amended, affirm.
FACTS
On September 7, 2013, the defendant, Bobby C. Isidore, and Trenton J. Johnson met the victim, Leighton Powe, Jr., at the Dollar General store on Robert Boulevard in Slidell, Louisiana, to purchase marijuana. Johnson drove his white GMC Sierra truck, the defendant sat in the backseat behind Johnson, and Isidore sat behind the empty front passenger seat. The three occupants of the truck discussed their scheme to rob the victim, which they had devised earlier with Kishion Griffin and Darion Causey.
When the victim arrived at the Dollar General store, he exited his vehicle and entered Johnson's truck on the front passenger side. After he sat down, Isidore reached around the seat and grabbed the victim's upper chest. As the victim fought back, the defendant pointed a gun at the victim and shot him in his head. The defendant then ordered Johnson to drive to Javery Road, where the defendant dumped the victim's body into a ditch. Afterward, the defendant drove Johnson's truck to Camelot Road and set it on fire. He then disposed of the gun in a trash can on Badon Road and returned to his grandmother's house. The defendant fled to Georgia to see his girlfriend and was arrested shortly after arriving back in Slidell.
SUFFICIENCY OF THE EVIDENCE
In cases such as this one, where the defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So. 2d 731, 734 (La. 1992). Accordingly, we will first address the defendant's third assignment of error, wherein he challenges the sufficiency of the State's evidence. Specifically, the defendant contends that the State failed to prove that he had specific intent to kill because the shooting was accidental. He argues that the State "only proved manslaughter." The defendant also contends in this assignment of error that the district court erred in denying his motion for new trial, where, among other things, the verdict was contrary to the law and the evidence.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 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. See LSA-C.Cr.P. art. 821B. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states, in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; 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 and 2000-0895 (La. 11/17/00), 773 So. 2d 732.
Louisiana Revised Statutes 14:30.1A addresses second degree murder and provides, in pertinent part:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of . . . aggravated arson . . . aggravated kidnapping, second degree kidnapping . . . armed robbery, first degree robbery, second degree robbery, simple robbery . . . even though he has no intent to kill or to inflict great bodily harm.
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." LSA-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. 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. It has long been recognized that specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So. 2d 542, 585, opinion supplemented by, 2000-1609 (La. 6/14/00), 768 So. 2d 592 (per curiam), cert. denied, 531 U.S. 946, 121 S. Ct. 345, 148 L. Ed. 2d 277 (2000).
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where 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 or overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932.
We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So. 2d 592, 596 (La. App. 1st Cir. 1985).
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 which raises a reasonable doubt. State v. Captville, 448 So. 2d 676, 680 (La. 1984). In the instant matter, the defendant's hypothesis of innocence was based on the theory that the shooting of the victim was accidental.
The defendant testified at trial. According to his testimony, prior to the date of the murder, he purchased a gun and five bullets from his cousin. While "hanging out" with some men on the date of the murder, one of the men, Griffin, asked if he could borrow the defendant's gun because he "had a lick," which meant someone he could rob, for one ounce of marijuana. The defendant claimed that he had been drinking that day and felt "the effects of it." He went to his grandmother's house and retrieved his gun. When he returned to the location where the other men were, everyone "started devising." He remembered how hard it was to obtain his gun, and he decided that rather than allowing Griffin to borrow it, he would go "along with it." When asked why he did not just return home, the defendant responded, "I don't know. I was drunk. I just wanted to do something at that point in time. I was free, honestly. I didn't have to work two jobs. I just had extra energy, so to say, and I just wanted to go." He testified that he brought the gun "To scare the guy, but it didn't work like that...."
According to the defendant's testimony, he entered the truck on the driver's-side backseat and sat behind Johnson, who was driving. Isidore entered the truck on the passenger's-side backseat. The defendant thought that the plan entailed Isidore holding the victim down once the victim entered the truck, them stealing the marijuana from the victim, "[getting] him out of the car," and driving off. He claimed that once the victim entered the truck and "relaxed back in the chair," Isidore reached over and tried to hold the victim to the seat. The defendant further claimed that the victim "broke free" and faced the defendant. Isidore looked at the defendant, and the defendant grabbed the gun, pointed it at the victim, and said, "Whoa." According to the defendant, the victim reached for the gun, and as he reached for it, the defendant pulled it back. The defendant claimed that when he pulled the gun back, it "went off." The defendant heard two doors close and someone hit the front driver's-side window. He testified that as that person attempted to enter the vehicle, he told Johnson to "drive." The defendant stated that after the shooting, he was scared, and he "sobered up." He directed Johnson to Javery Road because he knew it was a dead end, and he intended to dispose of the victim's body. The marijuana was removed from the victim's body, and the defendant admitted that the marijuana later found hidden in his vehicle was the same marijuana taken from the victim. According to the defendant, he then burned the truck by himself and ran through the woods to his grandmother's house. Once at his grandmother's house, the defendant changed clothes and told his friend to burn the clothes he was wearing. He claimed that he then drove to Georgia to see his girlfriend, and returned home to explain what happened to his mother. However, before he had the chance to speak with his mother, he was arrested.
On cross-examination, the defendant admitted that he had purchased a gun and bullets. He also admitted that he planned "to go along with" an armed robbery, and that although the victim never "laid a finger on [him,]" he pulled the trigger of his loaded gun with his left hand and robbed the victim of his marijuana after he had been shot. He did not check to see if the victim was alive but, rather, ordered Johnson to drive to Javery Road. Once there, the defendant pulled the victim's body out of the truck, put the victim into the ditch, and then got back into the truck and drove away. He burned the truck and disposed of his clothing in an attempt to "cover up" what they had done. Before arriving at his grandmother's house, the defendant disposed of the gun in a trash can.
The driver of the truck, Johnson, testified at trial that on the day of the murder, he called Griffin in order to purchase marijuana. Griffin offered to give Johnson some marijuana in exchange for him giving Isidore and the defendant a ride. According to Johnson, he thought he was driving Isidore and the defendant to rob the victim of marijuana. He testified that the plan was for Isidore to sit behind the victim and grab him while the defendant stole the marijuana from him. Johnson explained that the three of them arrived at the Dollar General store around 3:00 p.m. The victim pulled up and exited his vehicle. When the victim sat down, Isidore reached around the seat and grabbed the victim's upper chest. The victim fought back. Johnson saw the gun raised toward, and fired at, the victim's head before the victim fell into the passenger side door. Johnson saw another person exit the victim's car, run to his truck, and punch his window. The defendant told Johnson to drive away and directed him to Javery Road. After the victim's body was disposed of, Isidore walked away. According to Johnson, the defendant was about to leave as well, but Johnson told him to come with him and they met Causey at another Dollar General store. Johnson removed his belongings from his truck, and the defendant drove away and burned the truck. Causey drove Johnson to Causey's house, where Johnson removed his clothing in order for it to be burned. Causey asked Johnson to report his truck as stolen. Johnson's friend, Josh, picked him up and drove him back to his house on Michigan Avenue, where he burned his boxer shorts in his backyard. He then took a shower and contacted his mother in order for her to report the truck as stolen. Johnson confirmed that the defendant gave him some marijuana that had been taken from the victim.
Johnson pled guilty to manslaughter and was sentenced to imprisonment for twenty-five years.
The victim's girlfriend, Rachael Payne, and his friend, Kenneth Pere, testified that they rode with the victim to the Dollar General store on the day of the shooting. Both of them testified that the victim exited his car and entered the truck. While they sat inside the victim's car, Pere saw the truck "rock" and both of them heard a gunshot. They exited the victim's car and ran to the truck. Pere grabbed the door panel and punched the window, but the driver of the truck drove off.
Doctor Michael Defatta conducted the autopsy on the victim. He testified that there were three patterned marks on the victim's left shoulder and neck that occurred before the victim's death. Dr. Defatta opined that the marks could have resulted from the victim's tank top rubbing against his upper shoulder. The victim also suffered a gunshot wound to the right portion of his skull. The bullet entered the victim's skull and traveled through the right top portion of his head, from front to back. According to Dr. Defatta, the gun used to shoot the victim was no farther than thirty-six or forty-three inches away from the victim. Mud-like material found inside of the victim's trachea indicated that he was still breathing at the time his body was thrown into the ditch. According to Dr. Defatta, although the victim was alive at the time he was put into the ditch, he would not have survived the gunshot wound. Thus, although the silt and mud in the victim's airway contributed to his death, the cause of death was the gunshot wound to his head. Dr. Defatta further explained that the gunshot entry point and the injuries to the victim's left shoulder were consistent with the victim sitting in the front of the truck, being pulled to the left, and shot from the backseat. He stated that the victim also could have been facing the backseat head-on and that the victim's injuries were suggestive of a struggle "without question."
St. Tammany Parish Sherriff's Office Crime Lab firearms examiner, Lloyd Thomas Morse, testified at trial. Morse ran tests on the weapon that was recovered after the shooting, a Charter Arms revolver. In addition to the revolver, Morse received a fired cartridge, two pieces of lead, and a copper jacket for testing. He determined that the revolver functioned properly and that the cartridge had been fired in the revolver. The two lead pieces were unsuitable for analysis, but Morse determined that the copper jacket was consistent with a .38 caliber bullet, which was consistent with the class characteristics of the revolver. He was, however, unable to determine whether it was fired from the revolver.
The bullet fragments were recovered from the victim during his autopsy. The cartridge was left in the cylinder of the gun recovered on Badon Road and was located two cylinder positions from the firing position.
According to Morse, the revolver could be fired in either single or double action, meaning the shooter could either cock the hammer and squeeze the trigger or just squeeze the trigger. He explained that simply squeezing the trigger required more pressure to fire the weapon than if the shooter had cocked the hammer prior to squeezing the trigger. For double action, the pounds of pressure needed on the trigger totaled approximately ten, and for single action, approximately three-and-one-half. When asked whether the revolver could "just go off without someone's hand being on the trigger," Morse responded that in his opinion, it is "very difficult to have a revolver like this just automatically go off."
The defendant testified that he did not cock the gun.
Based on the physical evidence and testimony, a rational trier of fact could have reasonably concluded that the defendant shot and killed the victim when the victim attempted to fight back after Isidore grabbed him. The fact that the defendant shot the victim at such a close range indicates a specific intent to kill or inflict great bodily harm. See State v. Wallace, 612 So. 2d 183, 190 (La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1253 (La. 1993). The defendant's own testimony established that he did not cock the revolver. Thus, according to Morse's testimony, it would have taken approximately ten pounds of pressure to fire the revolver. As such, the hypothesis of accident or lack of intent presented by the defendant falls.
Moreover, the defendant could have been found guilty of second degree murder even if he had no intent to kill. Under Section 14:30.1A(2), the crime of second degree murder "is the killing of a human being: (2) [w]hen the offender is engaged in the perpetration or attempted perpetration of . . . aggravated arson . . . aggravated kidnapping, second degree kidnapping . . . armed robbery, first degree robbery, second degree robbery, simple robbery. . . even though he has no intent to kill or to inflict great bodily harm." See LSA-R.S. 14:30.1A(2). The State argued at trial that the defendant "committed one of those offenses or more than one," and opined that if he "planned an armed robbery and they pulled off an armed robbery," he would be guilty of second degree murder regardless of his intent to kill or to inflict great bodily harm.
In finding the defendant guilty of second degree murder, the jury rejected the defendant's claim of an accidental shooting, and concluded that the defendant's version of the events preceding the fatal shot was a fabrication designed to deflect blame from him. See Captville, 448 So. 2d at 680. After a thorough review of the record, we find that the evidence sufficiently supports the jury's unanimous verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of second degree murder. Accordingly, the district court did not abuse its discretion in denying the defendant's motions for new trial and postverdict judgment of acquittal.
This assignment of error is without merit.
MOTION FOR MISTRIAL
In this assignment of error, the defendant argues that the district court erred in denying his motion for mistrial because of an alleged improper comment on the evidence by Slidell Police Department Detective Daniel Seuzeneau.
Detective Seuzeneau testified that he conducted an interview with the defendant and that the defendant changed his story during the course of his interview several times. The detective opined that the defendant was not completely truthful. He testified that at the point in time during the investigation when he interviewed the defendant, he had not determined whether or not the shooting was accidental. On cross-examination, the following exchange occurred:
[Defense counsel]: Now, I believe I'm - you stated in your - and again, the jury has seen [the defendant's] statement. But you stated in your testimony that [the defendant] didn't tell the whole story? [Detective Seuzeneau]: In reference to which part of the story? [Defense counsel]: Well, that he didn't give you all of the facts of what happened. 12 [Detective Seuzeneau]: Not 100 percent. There were certain things that we determined later on to be a lie. [Defense counsel]: Like what? [Detective Seuzeneau]: Such as the gun accidentally going off and the fact that he didn't
Defense counsel then entered an objection arguing that the detective was commenting on the guilt or innocence of the defendant. The State responded, "You asked it. . . . And I think you brought it out when you asked him what was a lie and his opinion." In response to the defendant's motion for mistrial, the court stated, "This is what I'm going to do. I'm going to sustain the objection, and I'm going to instruct the jury to disregard his response." The court explained that it believed the detective's statement was "his comment on the evidence," but that "it was [defense counsel's] question and that's why I don't believe he's entitled to a mistrial." After the court instructed the jury to disregard the detective's response, cross-examination continued.
The defendant argues that mere admonishment to disregard the detective's response "did not remedy the error" because the detective's statement was not just a commentary on the evidence, but was a "cheap shot to the crux of the defense's theory of the case." He contends that the detective admitted on direct examination that he could not determine whether or not the shooting was an accident and that "the only exclusion of accident according to detective during state questioning was the testing of the gun to see that it was in proper working order." He further contends that the gun was never linked to the crime or to him.
Remarks by witnesses fall under the discretionary mistrial provisions of LSA-C.Cr.P. article 771, which provides, in pertinent part:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
* * *
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. Although a potentially prejudicial remark by an experienced police officer should be viewed with concern as to fairness of the trial, the decision as to the necessity of granting a mistrial is within the sound discretion of the district court. State v. Sanford, 569 So. 2d 147, 153 (La. App. 1st Cir. 1990), writ denied sub nom., State ex rel. Sanford v. State, 623 So. 2d 1299 (La. 1993). A prejudicial remark by an experienced police officer should be viewed with considerable concern as to the fairness of the trial and may require the granting of a mistrial. State v. Leblanc, 618 So. 2d 949, 960 (La. App. 1st Cir. 1993), writ denied, 95-2216 (La. 10/4/96), 679 So. 2d 1372. When the district court is satisfied that an admonition to the jury is sufficient to protect the defendant, such an admonition is the preferred remedy. State v. Ortiz, 96-1609 (La. 10/21/97), 701 So. 2d 922, 929, cert. denied, 524 U.S. 943, 118 S. Ct. 2352, 141 L. Ed. 2d 722 (1998).
Contrary to the defendant's assertions, Detective Seuzeneau did not admit that he was unable to determine whether the shooting was an accident, but, instead, testified that when he interviewed the defendant, he had not yet determined whether or not the shooting was accidental. He explained that he further investigated the possibility of an accidental shooting after interviewing the defendant, and that after he received what he believed to be the gun used in the shooting based on the defendant's directions as to the area where he disposed of it, he submitted it to the crime lab for testing to ensure that it was in "full working condition." The detective continued his investigation by obtaining search warrants, interviewing witnesses, and spending a "countless number of hours, days, even months after that putting together all of the pieces...." The detective's testimony on direct examination reflects that after reviewing all of the information obtained from his investigation, he was of the opinion that the defendant was being dishonest about the shooting being accidental. Thus, when defense counsel specifically asked the detective on cross-examination which parts of the defendant's "story" were later determined to be lies, he was simply answering the question by giving his opinion.
The district court promptly instructed the jury to disregard the detective's comment, and the defendant has failed to show that the admonition was insufficient to ensure him a fair trial. Considering the above, we find no error or abuse of discretion in the district court's denial of the defendant's motion for mistrial.
This assignment of error is without merit.
MOTION TO SUPPRESS
The defendant argues in this assignment of error that the district court erred in denying his motion to suppress his statement. Specifically, he contends that the motion to suppress should have been granted, as the detectives continued to question him after he invoked his right to remain silent.
Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. Confessions obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law. State v. Brown, 481 So. 2d 679, 684 (La. App. 1st Cir. 1985), writ denied, 486 So. 2d 747 (La. 1986). The record must also establish that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Since the general admissibility of a confession is a question for the district court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. State v. Patterson, 572 So. 2d 1144, 1150 (La. App. 1st Cir. 1990), writ denied, 577 So. 2d 11 (La. 1991). However, a district 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. The district court must consider the totality of the circumstances in determining whether a confession is admissible. State v. Hernandez, 432 So. 2d 350, 352 (La. App. 1st Cir. 1983). 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).
Although the burden of proof is generally on a defendant to prove the grounds recited in a motion to suppress evidence, such is not the case with the motion to suppress a confession. In such a situation, the burden of proof is with the State to prove the confession's admissibility. LSA-C.Cr.P. art. 703D. The State must prove beyond a reasonable doubt that the confession was made freely and voluntarily. State v. Seward, 509 So. 2d 413, 417 (La. 1987); See also State v. Smith, 409 So. 2d 271, 272 (La. 1982). Therefore, if the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically. State v. Welch, 448 So. 2d 705, 712 (La. App. 1st Cir.), writ denied, 450 So. 2d 952 (La. 1984). The direct testimony of the interviewing police officer can be sufficient to prove a defendant's statement was freely and voluntarily given. See State v. Sims, 310 So. 2d 587, 589-90 (La. 1975); State v. Washington, 540 So. 2d 502, 507-08 (La. App. 1st Cir. 1989).
The Supreme Court in Miranda stated that 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). However, 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. Michigan v. Mosley, 423 U.S. 96, 101-06, 96 S. Ct. 321, 325-28, 46 L. Ed. 2d 313 (1975); 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 considered in the assessment include: who initiates further questioning; whether there has been a substantial time delay between the original request and subsequent interrogation; whether Miranda warnings are given before subsequent questioning; whether signed Miranda waivers are obtained; and whether pressures were asserted on the accused by the police between the time he invoked his right and the subsequent interrogation. Brooks, 505 So. 2d at 722.
The defendant's statement, which was given on September 9, 2013, was audio and video recorded, and was played at the hearing on the motion to suppress. After the defendant waived his Miranda rights, the detectives explained that he was being interviewed because there was a warrant for his arrest for first degree murder. They revealed to the defendant that they had talked to several people. Detective Seuzeneau told the defendant, "Understand this, Felix, we don't have to talk to you right now, you don't have to say another word if you don't want, but we're giving you an opportunity to at least explain yourself. Just to be fair, ok?" The defendant responded, "Yes, sir." The detective went on to explain that he knew that the defendant was involved in the murder, and the purpose of the interview was to get the defendant's version of what happened. After the defendant asked how he was involved, Detective Seuzeneau said, "Felix, listen, look at me, man, we're not playing games. A judge signed a first degree murder warrant." The detective went on to say, "I would rather you tell me right now, 'Detective, I have nothing to say' and we'll be done with this." The defendant responded, "I have nothing to say." The detective responded, "I just don't want to go forward with this." The defendant explained, "I understand because I'm not trying to get myself into any kind of trouble or any more trouble than I'm in" and again said, "I have nothing else to say." Immediately thereafter, Detective Luke Irwin, who was also present during the interview, explained to the defendant that he was a "gun expert" and that he had his own theory that the murder could have been an accident, but that the only way he could prove his theory was if the defendant would explain to them what happened. The defendant responded that he was unaware of what the detectives knew. Detective Seuzeneau told the defendant that the version of events they had been provided with involved the defendant shooting the victim in his head. The detective told the defendant that they needed his version of events. The defendant opined that, "Regardless of what happened, I'm wanted for murder." The conversation continued, and at some point, the defendant asked for "numbers." Detective Irwin told the defendant that he could not promise him anything, but that the more he told them, the more he could help himself. The defendant asked if he could talk to his mother, and the detectives told him that he could, but that they needed to conclude the interview first. The defendant then explained to the detectives his version of events on the day of the murder, stating, specifically, that the victim grabbed for the gun, and that when he did so, the defendant pulled it away, and the gun "went off."
The testimony presented at the hearing on the motion to suppress established that Detective Seuzeneau advised the defendant of his rights and executed a Miranda rights form. The defendant appeared to understand his rights and signed a form waiving those rights. According to the testimony, the defendant was not forced or coerced into making a statement, nor was he promised anything of value to make a statement. Once the defendant stated that he did not have anything to say, no specific questions were asked of him. Detective Seuzeneau testified that he told the defendant that it was his decision whether or not to make a statement.
The district court took the matter under advisement. The parties later returned to court, and the district court judge read her reasons into the record. She noted that the eleven-minute mark of the interview contained the two segments at issue wherein the defendant stated, "I have nothing to say," and "I have nothing else to say," and thereafter, the defendant volunteered statements and asked questions of the detectives. The court stated:
[Taking] into consideration the totality of the interview and circumstances, the Court finds the defendant did not unequivocally exercise his right to remain silent. The Court further finds that the evidence reflects that no promises were made to the defendant. Rather, the detectives advised that they could not promise him anything. There were no threats made to the defendant.
In summary, the Court finds that the defendant was advised of his Miranda rights. He voluntarily and intelligently waived those rights and his statement was made freely and voluntarily and not under the influence of fear, duress, intimidations, menace, threats, inducement, or promises. The Motion to Suppress is denied.
In State v. Daniel, 378 So. 2d 1361, 1366 (La. 1979), the defendant told the police he did not want to talk, but an assistant district attorney told the defendant, "before you make up your mind one way or the other as to whether or not you want to talk to us, let me tell you what we've got." Thereafter, the defendant was informed of the evidence the police had indicating that he killed two people. The defendant then confessed to the murders and took the police to the area where the shotgun used in the murders was hidden. The Louisiana Supreme Court relied upon Mosley in ruling that the district court should have denied the motion to suppress, noting that "Nothing in Miranda 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." Daniel, 378 So. 2d at 1366.
Based on the record before us, we find that the district court did not err in denying the defendant's motion to suppress his statement. The defendant was given his Miranda warnings and signed a form waiving his rights. Immediately after the defendant stated that he had nothing else to say, Detective Seuzeneau stopped asking questions. Detective Irwin did not ask any questions, but explained to the defendant that he thought the murder may have been an accident and that he needed the defendant's version to prove his theory. The detectives explained to the defendant that they had evidence that he was the shooter and gave him the opportunity to give his version of what happened. No evidence suggests that the defendant was coerced or pressured into making a statement, but, instead, was provided information by the detectives so that he could reconsider his decision not to make a statement. In sum, the record supports the district court's denial of the defendant's motion to suppress the statement at issue herein.
This assignment of error lacks merit.
REVIEW FOR ERROR
On count one, the defendant was sentenced to a term of life imprisonment without the benefit of parole. In reviewing the record for error pursuant to LSA-C.Cr.P. art. 920(2), we have discovered that the district court failed to order that the defendant's sentence on count one be at hard labor. See LSA-R.S. 14:30.IB. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, Article 902(2) authorizes consideration of such error on appeal. Further, LSA-C.Cr.P. art. 882A authorizes correction by the appellate court. We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not simply amend the sentence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 122-123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So. 2d 1277. Accordingly, because a sentence at hard labor was the only sentence that could have been imposed for the conviction on count one, we correct the sentence on count one to provide that it be served at hard labor.
The minutes reflect that the defendant was sentenced to hard labor on count one. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 (La. 1983).
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. LSA-C.Cr.P. art. 882A.
CONCLUSION
For the above and foregoing reasons, the defendant's convictions on counts one and three, and the sentence on count three, are hereby affirmed. The defendant's sentence on count one is hereby amended, to provide that the sentence be served at hard labor, and is affirmed, as amended.
CONVICTIONS ON COUNTS ONE AND THREE AFFIRMED; SENTENCE ON COUNT ONE AMENDED, AND AS AMENDED, AFFIRMED; SENTENCE ON COUNT THREE AFFIRMED.