Opinion
NUMBER 2011 KA 0997
05-04-2012
STATE OF LOUISIANA v. WALTER A. KOTT, JR.
Walter P. Reed District Attorney Covington, LA Kathryn Landry Special Appeals Counsel Baton Rouge, LA Counsel for Appellee State of Louisiana Frank Sloan Appellate Attorney Mandeville, LA Counsel for Defendant/Appellant Walter A. Kott, Jr.
RE: Docket Number 2011-KA-0997
State Of Louisiana
v.
Walter A. Kott, Jr.
22nd Judicial District Court
Case #: 378041
St. Tammany Parish
On Application for Rehearing filed on 02/24/2012 by Frank Sloan
Rehearing, ___________________________
___________________________
Vanessa G. Whipple
___________________________
James E. Kuhn
___________________________
John M. Guidry
___________________________
Christine L. Crow, Clerk
NOT DESIGNATED FOR PUBLICATION
Opinion Granting Rehearing for Limited Purpose
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 378,041
Honorable Richard A. Swartz, Jr., Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Kathryn Landry
Special Appeals Counsel
Baton Rouge, LA
Counsel for Appellee
State of Louisiana
Frank Sloan
Appellate Attorney
Mandeville, LA
Counsel for
Defendant/Appellant
Walter A. Kott, Jr.
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
GUIDRY , J., on rehearing
In our original opinion, we addressed the defendant's counseled assignment of error contending the trial court erred and/or abused its discretion in permitting the State to use evidence of another crime in rebuttal. We found no merit in the claim and affirmed the conviction and sentence. State v. Kott, 11-0997 (La. App. 1st Cir. 2/10/12) (unpublished). Due to a clerical error, we did not address, however, the defendant's timely-filed, pro-se brief, which was initially returned unfiled as untimely. This rehearing is granted for the limited purpose of addressing the defendant's pro-se assignments of error.
FACTS
The facts of this case are set forth in our original decision in this matter.
MOTION TO SUPPRESS EVIDENCE
In pro-se assignment of error number one, the defendant argues the trial court erred in not suppressing evidence gathered from his motel room and vehicle because: the Miranda form was not signed until after the consent to search the room and vehicle was signed at 10:45 a.m.; because he was never told he did not have to consent to a search; because the 10:45 a.m. time was impossible because he did not even call the police until 11:23 a.m.; and because the two witnesses to the form, Detectives Sean McClain and Bobby Campbell, were at two different locations.
Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966).
In Miranda, the Supreme Court promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subject to custodial police interrogation. In sum, the Court held in that case that unless law enforcement officers give certain specified warnings before questioning a person in custody, and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary. State v. Leger, 05-0011, pp. 12-13 (La. 7/10/06), 936 So. 2d 108, 124, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).
The warnings must inform the person in custody "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda. 384 U.S. at 444, 86 S.Ct. at 1612.
A search conducted pursuant to consent is an exception to the requirements of both a warrant and probable cause. State v. Young, 06-0234, p. 6 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1118, 1122, writ denied, 06-2488 (La. 5/4/07), 956 So. 2d 606. Informing a suspect of his right to refuse consent to a search is not required. Instead, the lack of such a warning is only one factor in determining the voluntary nature of consent to a search. See State v. Parfait, 96-1814, p. 13 (La. App. 1st Cir. 5/9/97), 693 So. 2d 1232, 1240, writ denied, 97-1347 (La. 10/31/97), 703 So. 2d 20.
When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La. 5/22/95), 655 So. 2d 272, 281. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589, p. 6 (La. 12/1/09), 25 So. 3d 746, 751.
Prior to trial, the defendant moved to suppress the evidence sought to be used against him as unlawfully and illegally obtained. Following three hearings, the court denied the motion. The defendant applied to this court for supervisory relief from that ruling, but the writ was denied. State v. Kott, 09-0295 (La. App. 1st Cir. 6/22/09) (unpublished). Thereafter, he applied to the Louisiana Supreme Court for supervisory relief, and that court also denied his writ application. State v. Kott, 09-1667 (La. 10/30/09), 21 So. 3d 270.
Slidell Police Department Corporal Jeffrey Kahrs testified that on January 29, 2004, at 11:23 a.m., he responded to a call for medical assistance at the location of room 129 at the Plaza Inn & Suites in Slidell. On arrival, Corporal Kahrs encountered the defendant outside of the room, who told him, "she is not breathing" and brought him into the room. Corporal Kahrs saw the victim in the bathtub, checked for a pulse, and noticed the presence of lividity in her body. There were no obvious injuries to the victim's body, and Corporal Kahrs indicated he did not consider the matter a criminal investigation at that point. He did not handcuff the defendant or restrict his movements in any way. He did not consider the defendant to be a suspect in a crime. He stated the defendant was free to leave if he wanted to go. Corporal Kahrs questioned the defendant about "the time frame and presence in the room." Sergeant Campbell subsequently requested that the defendant be secured in the rear of the patrol unit, and Corporal Kahrs placed him there without handcuffs. Corporal Kahrs stated he still did not consider the defendant to be a criminal suspect. Pursuant to standard procedure, Corporal Kahrs patted the defendant down for weapons and contraband, and the defendant stated he had his medication in his pocket. Corporal Kahrs removed hydrocodone from the defendant's pocket, as contraband. He immediately recognized the pills, which were labeled "Watson 503," because he had dealt with hydrocodone "plenty of times." The defendant stated his prescription bottle for the medication was in his car. Corporal Kahrs advised the defendant of his Miranda rights. Corporal Kahrs never interrogated the defendant about the dead body or the drugs, and stated the defendant made no inculpatory statements to him. The defendant was not arrested at the scene and was never charged with illegal possession of any drugs.
Slidell Police Department Detective Sean McClain testified he came into close contact with the defendant at the police station. He observed nothing which would suggest the defendant was impaired by drugs or alcohol or that the defendant was unable to understand what was occurring around him or what was being said to him. Detective McClain identified State Exhibit #1 as a form for permission for search and seizure. In the form, the defendant authorized Sergeant Campbell "to search my residence" and "my motor vehicles," and "to remove from my said residence, real estate and/or motor vehicles whatever documents, articles, or other items of property whatsoever which they deem pertinent to their investigation[.]" Detective McClain indicated Sergeant Campbell was processing the scene at the time the defendant signed the consent form. The form indicated it was executed on January 29, 2004 at 10:45 a.m. Detective McClain made no promises to the defendant in order to get him to sign the form. Detective McClain also stated he did not threaten the defendant or use any form of pressure on him to induce his cooperation or consent. After the defendant signed the form, Detective McClain advised the officers at the scene that they could proceed with a search of the defendant's motel room and vehicle.
Slidell Police Department Sergeant Bobby Campbell testified he was the "case detective" for the investigation at issue. His responsibilities included collecting evidence from the scene. He stated evidence was recovered from the defendant's motel room and vehicle pursuant to a consent to search. He indicated Detective McClain "spearheaded the pursuit of a consent to search." Sergeant Campbell testified, after the defendant was taken to the police station, Detective McClain called him (Sergeant Campbell) and advised him the defendant had consented to a search of the defendant's room and vehicle. After he finished processing and documenting the crime scene, Sergeant Campbell also went to the police station. He entered the interview room, introduced himself to the defendant, told the defendant that he (Sergeant Campbell) had searched the defendant's room and vehicle, and asked him to confirm that he had consented to the searches. Sergeant Campbell testified the defendant confirmed he had given consent and said "something to the effect of you all search whatever you want." Thereafter, Sergeant Campbell signed the consent form as a witness. He indicated the "10:45 a.m." time on the form was inaccurate because the call from the location was not made until 11:23 a.m.
There was no error or abuse of discretion in the trial court's denial of the motion to suppress evidence. The defendant relies on the "10:45 a.m." time on the consent to search being before the "13:14" time on the written Miranda-rights form. The testimony of Corporal Kahrs, however, indicates the defendant was orally advised of his Miranda rights prior to his arrival at the police station where he executed the consent-to-search form. Further, Sergeant Campbell testified the "10:45 a.m." time was inaccurate because the defendant did not even call the police at the scene until 11:23 a.m. Detective McClain was not required to advise the defendant of his right to refuse consent. See Parfait, 96-1814 at 13, 693 So. 2d at 1240. Moreover, the permission for search and seizure form signed by the defendant stated the defendant's consent was given "after having been informed by these officers that T have the right to refuse to permit this search and seizure." Lastly, testimony at the suppression hearings explained how Detective McClain and Sergeant Campbell could both "witness" the consent form even though they were in different places when it was executed. Detective McClain testified Sergeant Campbell did not sign the consent form at the same time as he did because Sergeant Campbell was at the crime scene. Sergeant Campbell testified he signed the consent form after confirming that the defendant had in fact consented to the search.
This assignment of error is without merit.
MOTION TO SUPPRESS CONFESSIONS/
INCULPATORY STATEMENTS
In pro-se assignment of error number two, the defendant argues the trial court erred in denying the motion to suppress confession/inculpatory statements because Jan Harrington Wroten testified Sergeant Campbell bragged about how the final two statements were obtained after 6:00 p.m., after the defendant went into severe withdrawal, and after the defendant's medications were placed in front of him, and he was promised the medications in exchange for the statements.
It is well settled that for a confession or inculpatory statement to be admissible, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D). Further, if the statement was elicited during custodial interrogation, the State must show that the defendant was advised of his Miranda rights. Whether or not 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. The trial court must consider the totality of the circumstances in deciding whether or not a confession is admissible. Moreover, where conflicting testimony is offered, credibility determinations lie within the sound discretion of the trial judge, and his ruling will not be disturbed unless clearly contrary to the evidence. Unless the evidence does not support its findings, an appellate court will defer to the trial court's determination as to whether a confession was made knowingly, intelligently, and voluntarily. State v. Williams, 01-0944, p. 13 (La. App. 1st Cir. 12/28/01), 804 So. 2d 932, 944, writ denied, 02-0399 (La. 2/14/03), 836 So. 2d 135.
Detective McClain testified he advised the defendant of his Miranda rights prior to the defendant making any statements, and identified State Exhibit #2 as a Miranda-rights-waiver form signed by the defendant.
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The fact that a defendant is suffering from a medical condition does not mean that he is incapable of giving a voluntary statement. One who has suffered a physical injury and is experiencing pain can still be competent to give a free and voluntary confession. As in other cases, the critical inquiry is whether the defendant was able to understand the rights explained to him and voluntarily give a statement. Williams, 01-0944 at 13, 804 So.2d at 944-45.
Prior to trial, the defense moved to suppress the use as evidence of all written confessions or inculpatory statements. The defense presented testimony from Jan Marie Wroten in connection with the motion. She was the mother of the victim. Following the death of the victim, she spoke to Sergeant Campbell while retrieving the victim's vehicle and her possessions. According to Wroten, Sergeant Campbell stated the defendant had asked for pills, and Sergeant Campbell imitated shaking a bottle of pills in front of her face and told her he had told the defendant he could have the pills if he would write the confession.
The State presented testimony from Sergeant Campbell in connection with the motion to suppress confessions/inculpatory statements. He had been employed by the Slidell Police Department for twenty years. He indicated he brought two pill bottles recovered from the defendant's vehicle into the interview room to question the defendant concerning whether or not they belonged to him and, if they did belong to him, where he had obtained them. Sergeant Campbell denied taunting or teasing the defendant with the bottles in order to force him to cooperate with the police. He testified neither he nor any officer he observed told the defendant that the defendant could have his pills after finishing his statements.
On cross-examination, Sergeant Campbell stated the defendant told the police he was a drug addict and asked for his drugs four or five times while being interviewed. Sergeant Campbell testified the defendant did not appear to be in any medical distress and never asked for a doctor or ambulance. He indicated that when Wroten came to pick up the victim's belongings, Wroten stated the defendant was a "pill head." Sergeant Campbell responded it was obvious the defendant had a drug problem because he asked for drugs multiple times in the interview room. Sergeant Campbell indicated Wroten was amazed the defendant had asked the police for drugs, and he told her, "as if we would dangle his drugs in order to get him to tell the truth. We don't operate that way." Sergeant Campbell denied shaking his hand in front of Wroten's face.
The State also presented testimony from Slidell Police Department Captain Kevin Swann in connection with the motion to suppress confessions/inculpatory statements. He indicated he had contact with the defendant during his questioning at the police station. He denied either personally, or being aware of any other officers, pressuring, coercing, or threatening the defendant to induce his cooperation. He indicated the defendant said he was ill due to some issues with his liver, but the defendant never requested immediate medical attention or an ambulance. Captain Swann testified that neither he nor any other officer made any statement to the defendant that the defendant would be provided medication in exchange for an incriminating statement.
In denying the motion to suppress confessions/inculpatory statements, the trial court found the fact that the defendant suffered from withdrawal did not make him incapable of giving a voluntary confession. See Williams. 01-0944 at 13, 804 So. 2d at 944-45. The court stated it was convinced the police officers did not use the defendant's pills to induce or coerce the confessions. The court concluded, "Obviously, Mr. Kott wanted pills but they were not used to coerce or intimidate him into [confessing] nor were improper influences used." The defendant applied to this court for supervisory relief from the ruling of the trial court, but the writ was denied. State v. Kott, 09-0295 (La. App. 1st Cir. 6/22/09) (unpublished). Thereafter, he applied to the Louisiana Supreme Court for supervisory relief, and that court also denied his writ application. Kott, 21 So. 2d 270.
There was no error or abuse of discretion in the trial court's denial of the motion to suppress confessions/inculpatory statements. The court made a factual and credibility determination that the police did not use the defendant's pills to coerce or intimidate him into confessing, and that ruling was supported by the testimony of Sergeant Campbell and Captain Swann.
This assignment of error is without merit.
ERRORS NOT HARMLESS
In pro-se assignment of error number three, the defendant argues the trial court's errors in not suppressing the evidence and in denying the motion to suppress confession/inculpatory statements were not harmless. Based on our disposition of pro-se assignments or error numbers one and two, we pretermit consideration of this pro-se assignment of error.
CONCLUSION
Therefore, having concluded the trial court did not err or abuse its discretion in denying either the motion to suppress evidence or the motion to suppress the confession, we adhere to the result reached in our original opinion and again affirm the defendant's conviction and sentence.
LIMITED REHEARING GRANTED; CONVICTION AND SENTENCE AFFIRMED.