Opinion
NUMBER 2014 KA 1732
10-13-2015
STATE OF LOUISIANA v. JOSHUA JORDAN
Warren Montgomery District Attorney Franklinton, LA Kathryn W. Landry Special Appeals Counsel Baton Rouge, LA Counsel for Appellee State of Louisiana Timothy T. Yazbeck Gretna, LA Counsel for Defendant/Appellant Joshua Jordan
NOT DESIGNATED FOR PUBLICATION
On appeal from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana
Docket Number 13 CR8 120232
Honorable Scott Gardner, Judge Presiding
Warren Montgomery
District Attorney
Franklinton, LA
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, LA
Counsel for
Appellee
State of Louisiana
Timothy T. Yazbeck
Gretna, LA
Counsel for
Defendant/Appellant
Joshua Jordan
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
The defendant, Joshua Jordan, was charged by grand jury indictment with one count of distribution of a schedule II controlled dangerous substance (oxycodone), a violation of La. R.S. 40:967A(1). He entered a plea of not guilty, and following a jury trial, was found guilty as charged. He filed motions for a new trial and post-verdict judgment of acquittal, both of which were denied. The defendant was then sentenced to a term of imprisonment of twenty-five years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. He moved for reconsideration of sentence, which was denied. The State subsequently filed a habitual offender bill of information, and after a hearing, the defendant was adjudicated a fourth-felony habitual offender. The district court vacated the sentence previously imposed and sentenced the defendant to thirty-five years imprisonment at hard labor without the benefit of probation or suspension of sentence. The district court further ordered that the first two years of the defendant's sentence be served without the benefit of probation, parole, or suspension of sentence.
The defendant's predicate offenses included: (1) March 13, 2002 convictions for simple burglary in the 22nd Judicial District Court ("JDC") under docket number 00-CR5-80361; (2) August 13, 2003 conviction for theft over $500.00 in the 22nd JDC under docket number 00-CR2-87201; (3) June 3, 2009 convictions for possession of schedule II controlled dangerous substance in the 22nd JDC under docket number 09-CR3-101818; and (4) November 22, 2010 convictions for possession of schedule I, II, and IV controlled dangerous substances in the 22nd JDC under docket number 10-CR1-107582.
The defendant now appeals, alleging two assignments of error. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
FACTS
The defendant and his girlfriend, Breann Nolan, lived with the defendant's mother, Judith Jordan (Jordan). On August 15, 2012, the defendant, Jordan, and Nolan went to the defendant's doctor appointment in Slidell, Louisiana. A fight ensued after they returned home from the appointment, and Jordan decided to spend the night at her daughter's home. The following morning, August 16, 2012, Jordan returned home. She planned to leave out the defendant's medication for the day, which he had been prescribed at his doctor's appointment the previous day, but was unable to locate his pills. According to Jordan, she hid the defendant's pills on her closet shelf, and he did not know where they were. Shortly after she got off work at 5:00 p.m., Jordan returned home with her daughter and discovered the defendant lying on the floor in the living room. They also found Nolan lying unresponsive on the couch in the living room.
Jordan's daughter called 911, and Bogalusa Police Department Officer Jeff Bergeron was dispatched to the home. When Officer Bergeron arrived, Nolan was being treated by emergency medical services, and the defendant was stumbling around, exhibiting slurred speech, and stating that his head hurt. The defendant was subsequently taken to the hospital by ambulance.
Officer Bergeron entered the home in order to investigate the matter and located two oxycodone pills underneath the coffee table in the living room near where Nolan was found. There were pill bottles and knives all throughout the house. In the back bedroom, he found a nightstand with a spoon, residue and several empty pill bottles on top of it. One bottle, labeled 30 milligrams of oxycodone, was prescribed to the defendant and filled on August 15, 2012. The other bottle was labeled as a prescription for 1 milligram of clonazepam, prescribed to Nolan on August 14, 2012.
After completing the investigation inside the home, Officer Bergeron drove to the hospital emergency room to check Nolan's status. He was met by a security officer who turned over a bag of twenty-seven oxycodone pills and one empty pill bottle found in Nolan's bra. According to the prescription information on the bottle, it was for 100 milligrams of Quetiapine and was issued to the defendant on April 25, 2012, The security officer also turned over an empty pill bottle of Klonopin found on Nolan and issued to her on July 19, 2012.
Nolan remained on life support in the hospital until August 20, 2012, when she was taken off life support and pronounced dead. The cause of her death was polysubstance drug toxicity of benzodiazapines and opiates. Drug screens performed on Nolan on August 16, 2012, revealed that she was positive for opiates (includes oxycodone), benzodiazepines (includes Klonopin), and marijuana. After Nolan's death, her blood tested positive for oxycodone, clonazepam (Klonopin), paroxetine (Paxil), and marijuana at autopsy.
In January 2013, while incarcerated for an unrelated offense, the defendant was interviewed by Bogalusa Police Department Lieutenant Wendell O'Berry. During the interview, Lieutenant O'Berry learned that the defendant and Nolan lived together for several months. The defendant told Lieutenant O'Berry that he and Nolan used drugs and that he supplied oxycodone to Nolan. He confirmed that he filled a prescription for oxycodone on August 1.5, 2012, and explained that he and Nolan crushed and snorted some of the pills. The defendant told Lieutenant O'Berry that he removed the pill bottle from the closet where he had hidden it and took out four pills. He gave one of the pills to Nolan and kept the other three to crush and snort himself.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the defendant argues that the evidence presented at trial was insufficient to support his conviction. Specifically, the defendant argues that the State failed to exclude the hypothesis that Nolan stole the oxycodone pills. The defendant also contends that, outside of his confession, there was no independent proof that he distributed oxycodone to Nolan and that the State failed to prove corpus delicti through corroborating evidence. The defendant further argues that the State exceeded the scope of the indictment by introducing evidence of Nolan's death.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). That standard of appellate review adopted by the legislature in enacting La. C. Cr. P. art. 821 is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So. 2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt.
When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 02-1492, p. 5 (La. App. 1st Cir. 2/14/03), 845 So. 2d 416, 420. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987).
It is well settled than an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, there can be no conviction without proof of the corpus delicti. State v. Celestine, 452 So. 2d 676, 678 (La. 1984). The corpus delicti must be proven by evidence that the jury may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Willie, 410 So. 2d 1019, 1029 (La. 1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984). This independent proof need not go to every element of the offense; and, it may be direct or circumstantial in nature. State v. Thibodeaux, 98-1673, p. 12 (La. 9/8/99), 750 So. 2d 916, 926, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Moreover, proof that the defendant was the person who engaged in the unlawful conduct, although necessary for the conviction, is not an element of the corpus delicti See State v. Chism, 08-474, p. 15 (La. App. 5th Cir. 12/16/08), 3 So. 3d 41, 50, writ denied, 09-0153 (La. 10/2/09), 18 So. 3d 102. Instead, it must be shown that the injury specified in the crime occurred and that the injury was caused by someone's criminal activity. State v. Martin, 93-0285, p. 7 (La. 10/17/94), 645 So. 2d 190, 194, citing 1 McCormick, Evidence § 145 (Strong ed., 4th ed.1992).
In this case, the injury specified in the crime relates to the receipt of a controlled dangerous substance from a non-prescribing individual or without a valid prescription. The evidence established that the defendant had a prescription for oxycodone that he filled the day before Nolan was found unconscious in his residence. Two oxycodone pills were on the floor near Nolan. Twenty-seven oxycodone pills and an empty Quetiapine pill bottle with the defendant's name on it were in her bra. The defendant was found lying on the floor in the same as Nolan. When he regained consciousness, he stumbled, slurred his speech, and complained that his head hurt. An empty oxycodone pill bottle prescribed to the defendant and a spoon was found on the nightstand that had residue of an unknown nature on top of it in the back bedroom. Nolan's autopsy drug and toxicology screens confirmed that she was positive for oxycodone, and nothing in the medical records admitted established that oxycodone was not administered to her while she was in the hospital following her overdose. The coroner testified that the cause of Nolan's death was polysubstance drug toxicity of benzodiazapines and opiates (including oxycodone), The police recovered two pill bottles for other prescription medications for Breann; however, they did not recover a prescription bottle for oxycodone in her name. They only discovered the empty prescription bottle for oxycodone issued to the defendant the previous day. (According to the record, that prescription bottle originally contained in excess of 100 oxycodone pills.)
The circumstantial evidence indicates that Nolan consumed oxycodone, a controlled dangerous substance, which had been prescribed to another person, namely, the defendant, and thus, the commission of a crime by someone relative to the receipt of the controlled dangerous substance was established. Based on our consideration of this evidence, in the light most favorable to the prosecution, we find that the State presented sufficient evidence to establish the corpus delicti.
Once the corpus delicti has been independently established, a confession alone may be used to identify the accused as the perpetrator of the crime. Celestine, 452 So. 2d at 678; State v. Carter, 521 So. 2d 553, 555 (La. App. 1st Cir. 1988). 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 evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, p. 6 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932.
A defendant is guilty of distribution when he transfers possession or control of a controlled dangerous substance to his intended recipients. See La. R.S. 40:961(14); State v. Cummings, 95-1377, p. 4 (La. 2/28/96), 668 So. 2d 1132, 1135. In addition to delivery, the State must prove the defendant must have known or had guilty knowledge of the controlled dangerous substance when he or she transferred it. Finally, the state must prove the exact identity of the controlled dangerous substance is an essential element of the crime of distribution thereof. See La. R.S. 40:961(10) & (14); State v. Scott, 31,617, p. 5 (La. App. 2d Cir. 2/24/99), 730 So. 2d 515, 518.
The defendant did not testify at trial. However, in a video recorded statement that was played before the jury, the defendant admitted that he went into his closet where the oxycodone pills were hidden, removed four pills, and gave one to Nolan. He claimed that he could not remember anything that happened afterward because the pills "knocked [him] out." He further claimed that When he woke up, the pill bottle was on the floor in his room. According to the defendant's recorded statement, Nolan did not know where the pills were hidden.
The defendant's mother testified that the defendant has a brain injury resulting from a vehicle accident, and he gets very confused. She also testified that he is "very trusting" and does not "understand things." Jordan also claimed that Nolan planned to steal the defendant's medication. According to Jordan, the defendant and Nolan were awake when she returned to the home on the morning of August 16, 2012, and Nolan was the only person who could have taken the defendant's pills. Before she left for work, Jordan told Nolan that if the pills were not returned when she got home, she would call the police.
Contrary to the defendant's argument, the State did not rely solely on the defendant's confession to establish the corpus delicti of the distribution charge, but rather corroborated his confession with circumstantial evidence that a crime had been committed. Cf. State v. Hymes, 04-320, pp. 12-13 (La. App. 5th Cir. 10/12/04), 886 So. 2d 1157, 1164-65, writ denied, 04-3102 (La. 4/1/05), 897 So. 2d 599; State v. Robinson, 34,383, pp. 9-11 (La. App. 2d Cir. 2/28/01), 780 So. 2d 1213, 1219-20, writ denied, 01-1313 (La. 3/28/02), 812 So. 2d 642; State v. Swafford, 588 So. 2d 1276, 1281 (La. App. 2d Cir. 1991). The purpose of the corroboration rule is to test the reliability of a confession and thereby prevent an erroneous conviction based solely on an untrue confession. State v. Connolly, 96-1680, p. 14 (La. 7/1/97), 700 So. 2d 810, 820. The State need not produce independent evidence corroborating every element of the crime admitted in the accused's statement as long as it establishes the commission of a criminal act. Thibodeaux, 98-1673 at p. 12 (La. 9/8/99), 750 So. 2d at 927.
Both the testimony of the witnesses and independent physical evidence at the scene of the crime corroborated the defendant's confession. The evidence established that the defendant had a prescription for oxycodone and filled it on August 15, 2012. The following morning, the defendant's mother attempted to locate the pills in order to leave out the defendant's correct dosage for the day, but she was unable to find the pills. The defendant's mother testified that when she returned home after work, she found the defendant on the floor and Nolan lying unconscious on the living room couch. Two oxycodone pills were found under the coffee table in the living room near where Nolan was located. Nolan's drug and toxicology screens confirmed that she was positive for oxycodone, and her medical records established that oxycodone was not administered to her while she was in the hospital.
Based on our review of the evidence, we find that the jury did not act irrationally under the facts and circumstances presented to them and reasonably rejected the hypothesis of innocence offered by the defense that Nolan stole the defendant's pills. See State v. Ordodi, 06-0207, p. 14 (La. 11/29/06), 946 So. 2d 654, 662. 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 trier of fact. See State v. Calloway, 07-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). Based on a thorough review of the evidence, in the light most favorable to the prosecution, we find that the State presented sufficient evidence to establish the corpus delicti and corroborate the defendant's confession.
The defendant further complains that the State offered evidence of a homicide as opposed to a distribution. He contends that none of the objected-to testimony was "relevant to the allegation of distribution, but merely to prejudice the jury into thinking that [the defendant] caused the death of [Nolan]." During the testimony of Nolan's mother, defense counsel objected to testimony related to Nolan being admitted to the hospital, removed from life support, and pronounced dead. Defense counsel also objected to the State's attempt to introduce a photograph of Nolan. Defense counsel argued that "this is not a murder case" and that the evidence the State sought to introduce was "not material and relevant to a distribution case."
Prior to trial, the district court noted "both parties had made arguments on the exclusion of certain evidence which this Court has considered to be the res gestae of the offense involving the death of [Nolan]." The court went on to note that because it was a "threshold issue," it intended to "allow testimony regarding that as it is alleged to have resulted from the distribution of Schedule II drugs by this defendant."
Relevant evidence is evidence having any tendency 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. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Louisiana Code of Evidence article 404B(1) authorizes the admission of evidence of other crimes, wrongs, or acts when the evidence "relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding."
In State v. Brewington, 601 So. 2d 656, 657 (La. 1992) (per curiam), the Louisiana Supreme Court indicated its approval of the admission of other crimes evidence, under this portion of Article 404B(1), "when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it." It was necessary to refer to Nolan's death in order to describe the events surrounding the crime of distribution. The evidence that linked Nolan to the oxycodone alleged to have been distributed by the defendant included the drug and toxicology screens conducted at the hospital, as well as the autopsy report prepared after her death. Any prejudice the defendant may have suffered from the presentation of testimony related to Nolan's death was outweighed by its probative value. The district court did not abuse its discretion in allowing evidence of Nolan's death.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the defendant argues that the district court erred in admitting his statement into evidence. Specifically, the defendant contends that the officers interrogating him coerced him into confessing by leading him to believe that they would help him obtain release from jail for an unrelated conviction.
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, 01-0908, p. 4 (La. App. 1st Cir. 11/8/02), 835 So. 2d 703, 706, writ denied, 02-2989 (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, p. 11 (La. 5/22/95), 655 So. 2d 272, 280-281. However, a district court's legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La. 12/1/09), 25 So. 3d 746, 751. 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. See State v. Chopin, 372 So. 2d 1222, 1223 n.2 (La. 1979).
The State bears the burden of proving the admissibility of a purported confession. La. C. Cr. P. art. 703D. Louisiana Revised Statutes 15:451 provides that, before a purported confession can be introduced in evidence, it must be affirmatively shown to be 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 Miranda rights. State v. Plain, 99-1112, p. 5 (La. App. 1st Cir. 2/18/00), 752 So. 2d 337, 342. 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, 04-1718, p. 12 (La. App. 1st Cir. 3/24/05), 899 So. 2d 711, 721, writ denied, 05-1570 (La. 1/27/06), 922 So. 2d 544.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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). A confession is not rendered inadmissible because officers "exhort or adjure" an accused to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or which implies a promise of reward. State v. Robertson, 97-0177, p. 28 (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). Additionally, remarks by police officers telling a defendant that the officer will help do not negate the voluntary nature of a confession. See Hernandez, 432 So. 2d at 353,
At a hearing held on March 11, 2014, defense counsel confirmed that there was "no question that this was a free and voluntary statement on [the defendant's] part" and clarified that he was not requesting a ruling on the constitutionality of the statement, but rather, on whether the contents of the recorded statement were admissible in light of a pretrial ruling on a motion in limine. The district court found that the portion of the defendant's statement associated with his instant offense was admissible. The court then asked for argument related to the inclusion of other drug usage by the defendant and Nolan that the defendant referenced in his statement. Defense counsel argued that it should be excluded as other crimes evidence. The State responded that other evidence of the defendant distributing drugs to Nolan was relevant and should be admitted. The court ruled that the activities mentioned in the defendant's statement that were related to the events that lead to Nolan's death to the extent that they involved joint drug use by the defendant and Nolan were admitted. The court further ruled that the statements that the defendant made as to his sole drug use were excluded.
However, during trial, defense counsel stated that although he "said through the course of this . . . that the constitutional issue of this matter was not at issue[,]" after he watched the DVD of the defendant's statement the night prior and that day, he decided to orally move for a motion to suppress on the basis that the defendant's statement was not freely and voluntarily given. The court noted that there would be no mention of the defendant's statement until a ruling was made, and the State continued to call witnesses.
Prior to the State calling Lieutenant O'Berry, the court noted that a hearing on the defendant's motion to suppress was being held outside of the jury's presence. At the hearing, Lieutenant O'Berry testified that he and Captain Bullen interviewed the defendant on January 7, 2013, and that the defendant was incarcerated for an unrelated offense at that time. He explained the defendant's Miranda rights, and the defendant indicated that he understood and was willing to talk about Nolan's death. According to Lieutenant O'Berry, no promises were made to the defendant, and he appeared to understand his rights and the waiver that he signed. Lieutenant O'Berry explained that the conversation he had with the defendant prior to entering the video recording room was related to his relationship with Nolan, and during that portion of their conversation, no promises were made to the defendant nor was he coerced into giving a statement.
Near the end of the video recorded statement, the defendant asks, "Y'all trying to help me, huh?" Captain Bullen responded, "Yeah . . . Told you from the get-go we're trying to find the truth of what happened that night. Did you force-feed her drugs or did she take them on her own?" The defendant responded that Nolan "had to take them on her own" and "there ain't no way [he]'d do that."
In reference to the defendant's question during the recorded statement asking whether the officers were going to help him, Lieutenant O'Berry explained that the defendant was incarcerated in the jail in Franklinton and brought to Bogalusa over the weekend to appear in city court on an unrelated offense. During the unrecorded portion of his conversation with Lieutenant O'Berry, the defendant asked whether he was going back to Franklinton and whether the officer could find out when he was going back "because nobody wants to be in the Bogalusa jail." According to Lieutenant O'Berry, that is the only thing he thought the defendant could have been referring to in terms of asking for help, and he did not provide any help to the defendant. He denied talking to the defendant "about helping him in any sort of way in order to. convince him to give [Lieutenant O'Berry] that statement."
At the conclusion of the hearing, the district court denied the motion to suppress, pointing out that it viewed the defendant's recorded statement on two separate occasions.
The defendant contends that promises of leniency and inducements were made and that he thought his statement was going to help him obtain release. Contrary to this assertion, the testimony established that Lieutenant O'Berry made no promises to the defendant nor did he coerce the defendant into making a statement. Lieutenant O'Berry explained that the defendant's comment about officers helping him was in reference to returning to the Franklinton jail.
During Lieutenant O'Berry's unrecorded interview with the defendant, no police officers coerced, mistreated, or promised him anything. The record before us clearly establishes that the defendant was advised of his Miranda rights prior to making a confession; that at no time while in police custody did the defendant ask for a lawyer or invoke his right to remain silent; and that the defendant's confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. The district court's determination on credibility was supported by the record. Accordingly, the district court did not err or abuse its discretion in denying the defendant's motion to suppress his statement.
This assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.