Opinion
NUMBER 2017 KA 1130
02-16-2018
STATE OF LOUISIANA v. TRAVEYON BLACKLEDGE
Camille A. Morvant, II Jason Chategnier Kristine Russell Joseph S. Soignet Thibodaux, LA Counsel for Appellee, State of Louisiana Gwendolyn K. Brown Baton Rouge, LA and Roger W. Jordan, Jr. New Orleans, LA Counsel for Defendant/Appellant, Traveyon Blackledge
NOT DESIGNATED FOR PUBLICATIONAppealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana
Docket Number 528715Honorable Walter I. Lanier, III, Judge PresidingCamille A. Morvant, II
Jason Chategnier
Kristine Russell
Joseph S. Soignet
Thibodaux, LACounsel for Appellee,
State of LouisianaGwendolyn K. Brown
Baton Rouge, LA
and
Roger W. Jordan, Jr.
New Orleans, LACounsel for Defendant/Appellant,
Traveyon BlackledgeBEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.WHIPPLE, C.J.
The defendant, Traveyon Blackledge, was charged by grand jury indictment with two counts of second degree murder, violations of LSA-R.S. 14:30.1. He entered pleas of not guilty and filed a motion to suppress his confession. His motion was denied and, following a jury trial, he was found guilty as charged on both counts. The defendant was then sentenced on each count to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The court ordered the sentences to run concurrently. The defendant now appeals, raising three assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.
FACTS
On September 22, 2013, Jordan Landry returned to the apartment he shared with his mother, Nikki Landry (who was one of the victims) and found her dead in her bedroom. The second victim, Nikki's friend, Harry Lefort, was also found dead on the living room couch. Jordan immediately ran outside and contacted 911. Jordan provided a statement to the police and informed them that he knew the defendant and had seen him at the apartment a few days prior to the murders.
Lafourche Parish Sheriff's Office detectives found drug paraphernalia on Nikki's bed as well as shell casings near both victims. Detectives spoke with Von Bailey, who lived near the apartment building, which was on West Main Street in Larose. He told detectives that he heard the "rumbling" of a truck around 4:45 or 5:00 a.m. He looked outside of his window and saw what he described as a light gold pickup truck. Two black males exited the truck, entered Nikki's apartment, stayed for approximately five minutes, and then left in the truck. Shortly thereafter, a car that appeared to be a black Camaro or Trans Am drove up to the apartments, and the light gold pickup truck returned. Bailey stated that it looked like the occupants of the two vehicles spoke for a short time, and then the black vehicle left. The truck was parked right in front of Nikki's apartment door, and Bailey stated that he saw the same two men that he saw earlier enter the apartment a second time. They stayed inside for ten or twenty minutes as the truck sat idling outside. The two men then "swiftly" walked out, got back into the truck, and left the scene.
Testimony established that Nikki was a confidential informant for the Lafourche Parish Drug Task Force and participated in an undercover investigation involving the defendant's father, Toronzo Thompkins, resulting in criminal charges against Thompkins. Jailhouse calls made by Thompkins established that he sought to have Nikki killed so that she could not testify at his trial, which was set for September 23, 2013.
When the defendant was transported to the Crime Operations Center in Lockport for questioning related to the homicides, he admitted that he drove his uncle's truck to Nikki's apartment, he and Jerrard Major entered the apartment, and Major shot Nikki. The defendant further admitted that he shot Harry twice. Records of a cellular telephone number associated with the defendant indicated that he called Nikki on September 21, 2013, at 11:55 and 11:58 p.m. The defendant's cellular telephone records also established that he was at the scene of the murders at 4:04 a.m. on September 22, 2013. Law enforcement also obtained surveillance video from the surrounding area which depicted a truck matching the description of the defendant's uncle's truck at the apartment at the time of the homicides.
A firearms examiner testified that two separate firearms were used for the murders. Two cartridge cases were found near Harry's body, and five cartridge cases were found near Nikki's body. The coroner testified that Nikki suffered eight gunshot wounds to her left arm and head. One of the wounds was penetrating and seven were perforating. Harry suffered three gunshot wounds including one to the top of his head, one to the left side above his left ear, which exited the right side of his face, and one to his right wrist that exited his hand. Of the wounds, one was penetrating and two were perforating. The cause of death for both victims was multiple gunshot wounds.
The coroner defined penetrating wounds as those that penetrate the body, but do not exit and perforating wounds as those that enter and exit the body.
HEARSAY STATEMENTS
In his first assignment of error, the defendant contends that the district court erred by admitting recordings of hearsay statements. Specifically, the defendant complains that portions of jailhouse telephone calls made by Thompkins to individuals other than the defendant should have been ruled inadmissible. He argues that those portions of the recordings are hearsay, there is no identification of the other parties speaking with Thompkins, and the comments were not in furtherance of the conspiracy. See LSA-C.E. art. 801D(3)(b).
With some exceptions, all relevant evidence is admissible at trial. LSA-C.E. art. 402. "Relevant evidence" is that which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Relevant evidence may be excluded at trial if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801C. Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. LSA-C.E. art. 802.
A statement is not hearsay if it is offered against a party and is a "statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established[.]" LSA-C.E. art. 801D(3)(b). After the State presents a prima facie case of conspiracy, the burden of proof shifts to the defendant to present evidence showing his withdrawal from the conspiracy prior to the time the statements were made by his co-conspirators. The conspiracy is presumed to continue unless or until the defendant shows his withdrawal from or termination of the conspiracy. Such affirmative actions include making a clean breast through confession to the authorities as well as notification to the co-conspirators of abandonment or withdrawal. State v. Lavalais, 95-0320 (La. 11/25/96), 685 So. 2d 1048, 1052, cert. denied, Lavalais v. Louisiana, 522 U.S. 825, 118 S. Ct. 85, 139 L. Ed. 2d 42 (1997).
The standard for determining the admissibility of statements made by co-conspirators is less than that required to convict a defendant of conspiracy to commit an offense. Such statements, if admissible, only constitute evidence which the jury may consider in reaching its conclusion as to whether a defendant did or did not unlawfully participate in a conspiracy to commit an offense beyond a reasonable doubt. Accordingly, a district court's determination as to the admissibility of such evidence, whether the State has made a prima facie showing of a conspiracy and whether a defendant has sufficiently proven withdrawal so as to make his co-conspirators' statements admissible or inadmissible under Article 801D(3)(b), will not be overturned absent clear error. State v. Lobato, 603 So. 2d 739, 746-747 (La. 1992).
During trial, but outside of the jury's presence, a hearing was held on the admissibility of the jailhouse telephone call recordings and transcripts of those recordings. The State argued that it was offering the recordings in order to show communications between Thompkins and the defendant wherein they coordinated Nikki's murder. According to the State, these conversations established motive for the crime. The State further argued that the recordings were res gestae and were relevant because they established that two days prior to the murder, the defendant was discussing the death of Nikki with Thompkins.
In ruling on the admissibility of the recordings, the court noted that the caller identified himself in different ways, but the voice appeared to be the same. The court further noted that the person stated, "Hey, it's daddy" and that there was a reference to "Goo," who was known to be the defendant. The court concluded that there was sufficient probative value in showing that there was communication between Thompkins and the defendant. The court further noted that the calls specifically referenced a confidential informant, referring to her as "that bitch." The recordings also include statements such as, "My trial is coming up and that person needs to get gone if you know what I mean." In finding the recordings admissible, the court stated that they fit under LSA-C.E. art. 801D(3)(b).
The court also ordered that irrelevant conversations in the recordings were to be redacted. The court reviewed the transcripts and noted which portions of the conversations it found to be relevant. All other portions were redacted. On appeal, the defendant complains about three specific portions of the recordings that were not redacted. The defendant argues that in the first recording that was introduced, which took place on September 20, 2013, the following portion was inadmissible:
Stevie: She could easily hide from them if she ain't trying to go to court. Now, on the other hand, if she trying to go to court and you contact her, she might tell them bitches that. You know, you been f***ing with her and threatening her and all this shit.
Thompkins: Yeah.
Stevie: And that shit'll f***ing hurt you, too. You dig?
Thompkins: Yeah.
Stevie: You know, it all depends. It all depends on how real she trying to keep it.
Thompkins: Yeah.
Stevie: But if she going to hide, --
Thompkins: (inaudible)
Stevie: It ain't nothing to miss no court.
Thompkins: I know. That what I want - That what I - That what I want really - Before this night out, I'm-a [sic] do it. You know what I'm saying?
Immediately prior to that portion of the conversation, the defendant was on a three-way call with Thompkins and Stevie. During that portion of the conversation, Thompkins stated, "And the reason why I say the odds against me, I'm-a [sic] say it like this, because I know the task force, they going go try to snatch her and they going go try to put her in that place down there, in that f***ing place where that - in that jail down there, hold her 'til I go to court. You know what I'm saying?" The defendant replied, "Nuh-uh. See. See, I'm-a [sic] - Nuh-uh. I'm on top. I'm on top. I'm-a [sic] hire the lawyer. Don't worry about it. You know what I'm saying?" After the above-referenced portion of the conversation about which the defendant complains, Thompkins asked Stevie to call back the defendant. When the defendant did not answer, Thompkins instructed Stevie to text message the defendant and "tell him go put some minutes on the phone ASAP."
In the defendant's statement, he explains that hiring a lawyer was code for hiring a hit man to kill Nikki.
The defendant argues that the portion of the recording involving only Thompkins and Stevie was not a statement in furtherance of a conspiracy and expressed nothing more than "ramblings" between the two. However, based on the conversation immediately prior to that portion, it is clear that Stevie is referring to Nikki and the fact that she may tell authorities that Thompkins has threatened her. As soon as Thompkins finished his private conversation with Stevie, he asks Stevie to call the defendant back. This portion of the conversation is clearly in furtherance of the conspiracy and relevant to the defendant's motive for Nikki's murder.
The defendant next complains about a portion of the September 21, 2013 call placed by Thompkins at 6:26 p.m. Specifically, the defendant argues about the portion of the call wherein Thompkins tells an unidentified caller, "Give me - Work with me. Work with me. I need you to work with me. I got trial . . . Listen. I got trial Monday." Immediately after that statement, Thompkins says, "They bringing me to trial. I need for to call my little - my little boy right now. I just need two minutes." Once the defendant was on the line, Thompkins asked, "How's she looking, man?" And the defendant responded, "Man, we going check it out tonight." Thompkins reminded the defendant, "Today the 21st. I go to --." The defendant told Thompkins that he knew "what's up" and "It's all good. Just be cool." The portion of the call wherein Thompkins asked the unidentified caller to contact the defendant is in furtherance of the conspiracy and relevant because it shows that Thompkins had trial in two days and needed to contact the defendant to ensure that he took care of Nikki before that time.
Another call was placed by Thompkins to "Joey" on September 21, 2013, at 9:38 p.m. At the beginning of the call, Thompkins asked Joey, "He call back?" When Joey responded negatively, Thompkins asked him to "hit it back up right quick" and provided a number associated with the defendant. When the defendant did not answer, Thompkins said, "I think I'm-a [sic] slap the f*** out that n*****, man (laughing)." Joey asked, "He ain't running from you, huh?" Thompkins tells Joey, "No. That n***** ain't really doing shit, man." Thompkins then gave Joey a second number to try calling, but the phone associated with that number did not have minutes. On appeal, the defendant complains about the portion of the conversation immediately thereafter:
Thompkins: I should tell that motherf***ing woman they going try to come get her, bro.
Joey: Who that?
Thompkins: That f***ing confidential informant, bro. (laughing). I need to tell that motherf***er to get the f*** out of Dodge. You heard me?
Joey: Who that?
Thompkins: That f***ing confidential informant, man.
Joey: Man, that should have been done, man.
Thompkins: I know.
Thereafter, Thompkins instructed Joey to "call that n***** back" and gave him a number that matched the defendant's iPhone number. Afterward, Thompkins had a conversation with an unidentified speaker. The defendant complains about the portion of that conversation outlined below:
Thompkins: Man, every time I try to make conversation with Goo [the defendant's nickname] he talking about hold on and the motherf***ing phone, Look like he hang the phone up, man. What's wrong with your boy, man?Thompkins then reminded the unidentified speaker that he was going to court on the twenty-third. He told the unidentified speaker that he was not "f***ing around" and that his "nerves" were "bad." The speaker asked, "For what? We got this, man." Later during their conversation, Thompkins made the following statements, which the defendant complains were inadmissible:
Unidentified speaker: Man, that n*****, man, he got this. Everything cool, bro.
Thompkins: Huh?
Unidentified speaker: Be cool, bro. We got this.
Thompkins: Yeah, because this shit f***ing - The way shit going, look like I'm-a [sic] have to go to trial. You know what I'm saying?It is clear from the conversation immediately preceding these statements that Thompkins is having trouble getting in touch with the defendant and is concerned that the defendant will not follow through with their plan. Thereafter, the defendant joins the conversation, and Thompkins asks why he has been hanging up the phone on him. The defendant explained that Thompkins said "the same thing every time, every time, every time" and needed to "just cool out." Thompkins tells the defendant, "You all I got, man. I got to make conversation with you, man." Thompkins then instructs the defendant:
Unidentified speaker: Yeah. (inaudible)
Thompkins: (inaudible)
Unidentified speaker: I don't think he going let you down, bro.
Thompkins: Yeah. He ain't going have no choice but - He ain't going have no choice but to let me down because he bullshit.
Thompkins: Man, knock on that motherf***ing door, man.
Defendant: What you - Why you be saying that? (inaudible)
Thompkins: Don't say that, bro. Don't say that. Every time I say something you ain't got to say nothing. This me and you making conversation, man. You ain't got to say that, man. (inaudible) really don't know what the f*** we be talking when we be talking. When I tell you knock on the door, man, just - F***. You know what I'm saying? My mama might come to the mother f***er door, answer the door. If she don't come, -- You know what I'm saying? That's your motherf***ing grandma. Kick that motherf***er down and go in that motherf***er. You could sleep in that motherf***er. That's your grandma.
Defendant: My grandma be tripping (inaudible), man, I be just chillin', say I know what's up. You know what I'm saying? But Mawmaw, Mawmaw answer the phone. She must be sleeping (inaudible).
Thompkins: Well, if she's asleep, if she's asleep, don't wake her (inaudible) motherf***ing door. You know what I'm saying? Go check the other motherf***ing door. Make sure you get in that motherf***er. The motherf***ing door come out there for you to go in there,... -- go in there.As to that portion of the conversation, the district court stated, "I assume that's instructions, or at least a jury could determine that those are instructions on how to go about convincing Nikki Landry not to testify in Mr. Thompkins's [trial]." These statements, which were made hours before the murders, are clearly in furtherance of the conspiracy. The statements made by Thompkins to Joey and the unidentified speaker confirmed that the confidential informant was in danger, that Thompkins was concerned that the defendant was not in close communications with him, and that Thompkins had specific instructions for the defendant, who had "no choice" not to let Thompkins down, on how to carry out the murders.
The State made its prima facie case of conspiracy through the testimony of the officers present during the defendant's confession that Thompkins instructed him to kill Nikki so that she would not be able to testify during Thompkins's trial. Thereafter, the defendant presented no evidence showing his withdrawal from the conspiracy. Applying the co-conspirator exception to the recordings, we conclude that they were correctly admitted into evidence because they were made in furtherance of a conspiracy. The portions that the defendant complains about on appeal were further proof of the conspiracy and directly related to the defendant's motive for participating in the murder of Nikki. The statements made by Thompkins in those portions establish that he was becoming concerned about his approaching trial date and whether the defendant was going to follow through with their plan. We find that the portions of the recorded conversations introduced into evidence at trial are non-hearsay as defined in Article 801D(3)(b), and therefore were admissible. Accordingly, this assignment of error has no merit.
MOTION TO SUPPRESS
In his second assignment of error, the defendant contends that the district court erred in denying his motion to suppress his statements. Specifically, the defendant argues that because of his intellectual disability, the waiver of his rights was not knowing and intelligent.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. 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. LSA-C.Cr.P. art. 703A. The State bears the burden of proving the admissibility of a purported confession. LSA-C.Cr.P. art. 703D. Louisiana Revised Statutes 15:451 provides that, "[b]efore what purports to be a confession can be introduced in 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." It must also be established that an accused who makes a confession during custodial interrogation was first advised of his/her Miranda rights.State v. Plain, 99-1112 (La. App. 1st Cir. 2/18/00), 752 So. 2d 337, 342. The State must specifically rebut a defendant's specific allegations of police misconduct in eliciting a confession. State v. Thomas, 461 So. 2d 1253, 1256 (La. App. 1st Cir. 1984), writ denied, 464 So. 2d 1375 (La. 1985).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Whether a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. State v. Benoit, 440 So. 2d 129, 131 (La. 1983). The district court must consider the totality of the circumstances in deciding whether a confession is admissible. State v. Hernandez, 432 So. 2d 350, 352 (La. App. 1st Cir. 1983). Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 2004-1718 (La. App. 1st Cir. 3/24/05), 899 So. 2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So. 2d 544.
A district 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 district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district 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, 280-81. 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 Louisiana Supreme Court has noted that diminished mental or intellectual capacity does not itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. Benoit, 440 So. 2d at 131; see also State v. Young, 576 So. 2d 1048, 1053 (La. App. 1st Cir.), writ denied, 584 So. 2d 679 (La. 1991). The State has the burden of proving that the defendant's mental defect did not preclude him from giving a voluntary and free confession with a knowledgeable and intelligent waiver of his rights. The critical factors are whether the defendant was able to understand the rights explained to him and whether he voluntarily gave a statement. State v. Stewart, 93-0708 (La. App. 1st Cir. 3/11/94), 633 So. 2d 925, 931-32, writ denied, 94-0860 (La. 9/16/94), 642 So. 2d 189, 189-90; Young, 576 So. 2d at 1053.
Through testimony presented at the hearing on the defendant's motion to suppress his statements, the State established that the defendant was arrested on February 6, 2014, after 4:00 p.m. and transported to the Criminal Operations Center in Lockport for questioning around 4:40 p.m. Also transported to the center were Terry and Tre'von Folse, the two occupants of the defendant's black Camaro during the traffic stop that led to his arrest. Upon arrival at the center, the three were separated and detectives spoke to Terry and Tre'von first. Terry was released shortly thereafter, and Tre'von was released after he gave a recorded statement, which lasted around one or two hours and was completed around 7:00 or 8:00 p.m.
After the completion of Tre'von's interview, detectives continued working on a search warrant for the defendant's cellular telephone. While the defendant waited in a separate interview room, officers periodically checked on him and offered him water and restroom breaks. Once the warrant was obtained, a forensic download of the telephone was completed. Detectives began speaking with the defendant around 10:30 p.m. Lafourche Parish Sheriff's Department Deputy Kevin Johnson reviewed the defendant's Miranda rights with him, and the waiver of rights form indicates that it was signed by the defendant at 10:27 p.m. Deputy Johnson along with Sergeant Ben Dempster spoke with the defendant in a preliminary interview, during which the defendant acknowledged that he participated in the homicides, but tried to exonerate himself from the actual shooting. The defendant agreed to give a formal statement, the recording of which began at approximately 1:53 a.m. and was completed at 2:16 a.m. Thereafter, the defendant remained in the interview room and was afforded the opportunity to take breaks, use the restroom, eat, and drink.
Later that morning, the defendant was presented with additional facts and developments in the investigation, and his version of events presented in his first statement began to change. The defendant explained that Nikki was his friend, his eyes "teared up," and he got very emotional. His Miranda rights were reread to him, and he participated in a second recorded statement which began at 5:19 a.m. and was completed at 5:25 a.m. In his second statement, the defendant admitted entering the apartment and shooting Harry. He explained that he and Major entered the apartment and walked toward Nikki's bedroom. The defendant saw that she was sleeping, so he walked back toward the front of the apartment. Major then shot Nikki and exited her bedroom. When Major walked toward the front of the apartment, he pointed his gun at the defendant, and told him that he would shoot him if he did not kill Harry. The defendant then stated that he shot Harry twice.
Each of the officers involved in interviewing the defendant testified that he was not threatened or coerced into waiving his rights or making either of his statements, nor were any promises made in exchange for him providing the statements. The officers further testified that the defendant presented no signs of intoxication or impairment, he appeared to understand the questions asked, and his answers were responsive to the questions asked.
The defendant also presented testimony at the hearing on the motion to suppress. Dr. Marc Zimmerman, a psychologist who evaluated the defendant, testified that the defendant had a full-scale IQ of 49, which fell in the range of intellectual disability. Dr. Zimmerman explained that the defendant's reading and comprehension was at a kindergarten level and opined that there was a "high probability" that the defendant did not understand his Miranda warning. Dr. Zimmerman went on to explain that considering the defendant's intelligence level, he probably was more willing to do things that he thought would make authority figures happy.
The defendant's mother, Patience Blackledge, testified that when the defendant was tested at age seven, the school that he attended informed her that he had learning disabilities, other health impairments, and attention-deficit hyperactivity disorder. Blackledge further testified that the defendant was placed in special education and that at age eleven, he was diagnosed as bipolar.
Terry Folse also testified on the defendant's behalf. According to Folse, when he was at the Criminal Operations Center, he heard officers beating the defendant. He also claimed that he overheard the defendant "hollering" and requesting the opportunity to call his mother.
The State called forensic psychologist Rafael Salcedo as a rebuttal witness. Dr. Salcedo testified that he reviewed Dr. Zimmerman's report, the defendant's school records, and the defendant's psychiatric treatment records. Dr. Salcedo stated that during the two times that he examined the defendant, the defendant exhibited no signs of attention-deficit hyperactivity disorder, bipolar disorder, or mania even though he was not on any medication. Dr. Salcedo noted that the defendant missed many days of school and that nothing in his school records indicated that he suffered from an intellectual disability other than a Dr. Schexnayder noting "possible" mild mental retardation on the defendant's records. The records also showed that the defendant was examined by a psychiatrist who opined that the defendant had reading problems and was probably dyslexic. Dr. Salcedo pointed out that the defendant's lowest reading score while he was in school was a sixty five, whereas he scored in the fifty range when examined by Dr. Zimmerman and Salcedo. Dr. Salcedo noted that it is easy to manipulate a test to appear more impaired and concluded that there could be a malingering issue since the scores generated during his examination of the defendant, which should be stable over time, were lower than those generated when the defendant was examined by Dr. Zimmerman as well as those generated when the defendant was examined in school. Dr. Salcedo tested the defendant for possible malingering and determined that the defendant was trying to make himself appear intellectually impaired. He specifically noted that in his statements, the defendant used words like "avoid," "persuade," and "affidavit" in the correct context and also spoke in code to his father, referring to a "hit man" as "the lawyer." Dr. Salcedo concluded that the defendant was not suffering from an intellectual disability and testified that there was no basis to believe that the defendant did not understand his Miranda rights.
At the conclusion of the hearing, the court noted that although thirteen hours elapsed between the defendant's initial arrest and his final confession, the duration was not unconstitutionally prohibited. The court further opined that Folse was not a truthful witness. As to the Miranda waiver issue, the court stated that it believed Dr. Salcedo's impression of the defendant's lack of effort as being indicative of someone who is trying to affect the outcome of the test. The court recognized that the defendant may have a below-average intelligence, but found that he knowingly and voluntarily gave his statements and understood his Miranda rights. The court further found that there was no evidence of physical abuse and that the defendant was not coerced, threatened, or induced into making his statements, nor were any promises made to the defendant in exchange for him making the statements.
As discussed above, the defendant was fully advised of his rights and executed a waiver of rights form. As to the voluntariness of the defendant's statements, we note that the testimony indicated that there were no promises or abuse to induce the defendant's agreement to make the statements, and the defendant indicated such on the waiver of rights form. A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward. State v. Robertson, 97-0177 (La. 3/4/98), 712 So. 2d 8, 31, cert. denied, 525 U.S. 882, 119 S. Ct. 190, 142 L. Ed. 2d 155 (1998). Further, regarding any tactics used by the police during questioning, the issue is whether such tactics were sufficient to make an otherwise voluntary confession or statement inadmissible. See State v. Lockhart, 629 So. 2d 1195, 1204 (La. App. 1st Cir. 1993), writ denied, 94-0050 (La. 4/7/94), 635 So. 2d 1132.
In State v. Holmes, 2006-2988 (La. 12/2/08), 5 So. 3d 42, 72-73, cert. denied, 558 U.S. 932, 130 S. Ct. 70, 175 L.Ed.2d 233 (2009), the Louisiana Supreme Court stated:
Furthermore, despite the defendant's appellate claim that her low intelligence rendered her [waiver] of rights and subsequent statements involuntary, well established jurisprudence from this state shows otherwise. See e.g., State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 278-84 (La. 1995) (mildly retarded defendant's waiver of rights was knowing and intelligent, even though psychologist testified defendant was unable to comprehend his rights; psychologist also testified defendant was educable and could be made to understand rights, police officers testified defendant understood his rights in part because of his prior criminal history); State v. Istre, 407 So.2d 1183, 1186-87 (La. 1981) (19-year-old who had IQ of 68 and who did not know his own age intelligently waived rights, which were explained in simplistic terms that he apparently understood); see also State v. Brown, 414 So.2d 689, 696 (La. 1982) ("'[M]oderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession.'") (citations omitted).
After carefully reviewing the testimony adduced at the motion to suppress hearing, and the defendant's statements, in light of the entire record, we find that the State met its burden of proving the defendant gave voluntary and free confessions. The testimony established that any mental defect the defendant may have suffered from did not preclude him from giving voluntary and free confessions with a knowledgeable and intelligent waiver of his rights. The rights form consisted of simplistic phrasing of the rights, and the rights were read to the defendant. During the interviews, the defendant gave a willing account of the events. He provided responsive, intelligent answers to questions and gave a comprehensible account of the facts of the offenses. There was no indication that the defendant ever asked for an attorney despite being repeatedly advised of his rights. Further, the totality of the interviews clearly conveys that the statements were not being made because of any promises, coercion, or threats. We find no abuse of discretion in the district court's denial of the motion to suppress.
Accordingly, this assignment of error is without merit.
JURY INSTRUCTIONS
In his last assignment of error, the defendant argues that the district court erred in failing to give a jury instruction regarding his right to not testify.
At the conclusion of trial, the court asked both the State and the defense to review the proposed jury instructions. Defense counsel noted that he would review the proposed charges while at lunch. Upon return, when asked whether the parties were satisfied, defense counsel responded, "Defense is satisfied, Your Honor." After the instructions were read to the jury, defense counsel did not object. The record shows, and the defendant concedes, that he failed to properly preserve this issue for appeal by failing to object to the district court's general jury charge. In order for a defendant to properly preserve his objection to the district court's general charges to the jury, he must comply with the contemporaneous objection rule. LSA-C.Cr.P. art. 841. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. LSA-C.Cr.P. art. 801C. See Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981) (Just as adverse comment on a defendant's silence cuts down on the privilege by making its assertion costly, the failure to limit the jurors' speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege); see also State v. Jackson, 454 So. 2d 116, 118 n. 3 (La. 1984).
The defendant argues that despite his counsel's failure to object, his claim should be preserved under State v. Green, 493 So. 2d 588 (La. 1986). The defendant's reliance on Green is misplaced. Although the Green court reviewed the defendant's assignment of error, the issue before the court involved much more than a simple failure to give a jury instruction required by state law. The issue in Green was the facial constitutionality of LSA-R.S. 14:67, which provides for the substantive offense of theft as well as establishing a third offense recidivist procedure. The question raised by the Green defendant's due process attack on the statute was whether a state statute may constitutionally authorize the prosecutor, in a single proceeding, to offer both evidence of the defendant's guilt of the primary charge and evidence of prior crimes to enhance his punishment, without also requiring a limiting jury instruction. Unlike the claim presented in this case, the facial unconstitutionality of a statute on which a conviction is based is an error discoverable by the mere inspection of the pleadings and proceedings, without inspection of the evidence, which an appellate court is entitled to review, even though the defendant did not comply with the assignment of error procedure. Green, 493 So. 2d at 590.
Accordingly, this assignment of error also lacks merit.
CONVICTIONS AND SENTENCES AFFIRMED.