Opinion
NO. 2012 KA 1766
06-07-2013
STATE OF LOUISIANA v. ERIC PAUL McCLAIN
J. Phil Haney District Attorney Walter J. Senette, Jr. Assistant District Attorney Franklin, LA Attorneys for Plaintiff-Appellee, State of Louisiana Mary E. Roper Baton Rouge, LA Attorney for Defendant-Appellant, Eric Paul McClain
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
16th Judicial District Court,
In and for the Parish of St. Mary,
State of Louisiana
Trial Court No. 2009-179874
Honorable Lori A. Landry, Judge Presiding
J. Phil Haney
District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
Franklin, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Mary E. Roper
Baton Rouge, LA
Attorney for Defendant-Appellant,
Eric Paul McClain
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
Defendant, Eric Paul McClain, was charged by bill of information with possession of a schedule II controlled dangerous substance (cocaine) with intent to distribute, a violation of La. R.S. 40:967(A)(1). He pled not guilty. After a jury trial, defendant was found guilty as charged. Defendant filed counseled and pro se motions for new trial and postverdict judgment of acquittal, but the trial court denied all of these motions. The state then filed a habitual offender bill of information, alleging defendant to be a third-felony habitual offender. Defendant denied the allegations of the habitual offender bill of information. After a hearing, the trial court adjudicated defendant a third-felony habitual offender and sentenced him to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging four counseled and four pro se assignments of error. For the following reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence.
The alleged predicate convictions were: 1) a September 26, 1997 conviction in St. Mary Parish for distribution of cocaine, under docket number 97-146770, and 2) a January 18, 2008 conviction in St. Mary Parish for attempted possession of cocaine with intent to distribute, under docket number 06-171627.
FACTS
On April 9, 2009, St. Mary Parish Sheriff's Officers, led by Lieutenant Scott Anslum, executed a search warrant on a residence at 507 Ninth Street in Franklin. During the ensuing search, officers recovered a large amount of powdered cocaine and crack cocaine from different rooms in the residence, including an area identified as the "middle bedroom." Lieutenant Anslum interviewed defendant's mother, who lived at the searched residence, and she stated that the middle bedroom belonged to defendant. Lieutenant Anslum asked the defendant's mother to contact him on his cell phone and request that he come to the residence for an interview. Defendant complied. After being informed of his Miranda rights, defendant gave two statements in which he admitted to owning some of the drugs found in the residence. He also authorized the officers to open the safe found in the middle bedroom, where they found $9,950.00 in cash. Testing of the drugs found in the middle bedroom revealed that officers recovered 124 grains of powder cocaine and 12.7 grams of crack cocaine.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
Both of defendant's statements were recorded. The first statement took place at defendant's residence after he had been placed under arrest. The second statement took place after defendant was transported to the police station.
TIMELINESS OF APPEAL
The state argues in its brief to this court that defendant's appeal should not be considered on its merits because of his untimely filing of a written motion for appeal. We agree with the state that defendant was sentenced as a habitual offender on January 5, 2012, and that he did not file a written motion for appeal until February 28, 2012. Further, he did not file a motion to reconsider sentence. Therefore, defendant's written motion for appeal was technically untimely under La. Code Crim. P. art. 914(B).
However, we note that at the habitual offender sentencing hearing, defendant's retained counsel informed the trial court that defendant had become indigent as a result of his detention throughout the trial. Accordingly, the trial judge appointed the Louisiana Appellate Project ("LAP") to represent defendant on appeal. Further, the trial judge informed defendant that he would be awaiting defendant's appeal papers. Essentially, then, the trial court granted defendant an appeal and appointed the LAP at the time of defendant's sentencing. Under those circumstances, we find that it would be unfair and against the interest of judicial economy to dismiss defendant's appeal as untimely.
COUNSELED ASSIGNMENT OF ERROR 1
In his first assignment of error defendant argues that the trial court erred in failing to suppress his first statement, which he made to Lieutenant Anslum at the residence. Specifically, defendant contends that he made this statement in response to Lieutenant Anslum's alleged threats to arrest his mother if he did not make a statement claiming ownership of the drugs,
On the trial of a motion to suppress, the state has the burden of proving the admissibility of a purported confession or statement by the defendant. La. Code Crim. P. art. 703(D). In addition to showing that the Miranda requirements were met, the state must affirmatively show that the statement or confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises in order to introduce into evidence a defendant's statement or confession, See State v. Thomas, 461 So.2d 1253, 1256 (La. App. 1st Cir. 1984), writ denied, 464 So.2d 1375 (La. 1985); La. R.S. 15:451; see also State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 754. The state must specifically rebut a defendant's specific allegations of police misconduct in eliciting a confession, Thomas, 461 So.2d at 1256.
At the hearing on the motion to suppress, Lieutenant Anslum testified that he learned from defendant's mother that the middle bedroom belonged to defendant. As a result, Lieutenant Anslum requested that defendant's mother make contact with defendant and ask him to come to the residence. Lieutenant Anslum admitted on cross-examination that he told defendant's mother it was a possibility she would be arrested if he could not interview defendant and that he told defendant the same thing when they spoke briefly on the telephone.
At trial, Lieutenant Anslum testified to the same basic facts regarding his initial contact with defendant. However, he also added a description of routine police procedure for a situation where narcotics are found at a residence, but no one claims ownership of them. In such an instance, Lieutenant Anslum testified, all of the occupants of the residence are generally arrested and booked with the appropriate charges.
In determining whether the ruling on the motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may also consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
In finding defendant's statement at the residence to be freely and voluntarily given, the trial judge opined that as one of the several occupants of the residence where drugs were found, it was a possibility that defendant's mother would be arrested. Therefore, she found that Lieutenant Anslum's statements to defendant and his mother about the possibility of her arrest were not threats, but statements of fact.
The admissibility of a confession is, in the first instance, a question for the district court; its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession will not be overturned unless they are not supported by the evidence. State v. Sanford, 569 So.2d 147, 150 (La. App. 1st Cir. 1990), writ denied, 623 So.2d 1299 (La. 1993). The district court must consider the totality of the circumstances in deciding whether a confession is admissible. Testimony of the interviewing 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. Further, 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. As a general rule, this court reviews district court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. Hunt, 25 So.3d at 751.
After a careful review of the record, we find that the district court did not abuse its discretion in denying the motion to suppress defendant's statement. The testimony at the hearing on the motion to suppress and at trial, in addition to the videotaped recording of defendant's statement, clearly establish that defendant was advised of his Miranda rights and that he executed a knowing and intelligent waiver of those rights. Lieutenant Anslum's testimony at the hearing, which the district court found to be credible, showed that defendant appeared to understand his rights. The district court also found credible Lieutenant Anslum's testimony that he did not coerce or threaten defendant into implicating himself in order to exonerate his mother. Although defendant may have had a genuine concern for the welfare of his mother, it is evident that he was in no way coerced into incriminating himself in order to exonerate her. See State v. Brown, 504 So.2d 1025, 1031 (La. App. 1st Cir.), writ denied, 507 So.2d 225 (La. 1987). The test for voluntariness of a confession requires a review of the totality of the circumstances under which the statement was given. Maten, 899 So.2d at 721. We conclude, as did the district court, that under a totality of the circumstances, defendant's confession was voluntary. Therefore, the trial court did not err or abuse its discretion in denying the motion to suppress his statement.
This assignment of error is without merit.
COUNSELED ASSIGNMENT OF ERROR 2
In his second assignment of error, defendant contends that the trial court abused its discretion in failing to order a mistrial when the district attorney elicited testimony at trial regarding the trial court's finding, at the motion to suppress hearing, that defendant's statement was freely and voluntarily given.
At trial during the state's redirect questioning of Lieutenant Anslum, the following colloquy took place:
Q. Okay. Defense counsel asked a lot about the May 4th, 2010 hearing. Was that a Motion to Suppress and Probable Cause Preliminary' Hearing that the judge ruled on that day?Defense counsel then objected to this line of questioning on the basis that, at the motion to suppress hearing, the trial judge had determined the free and voluntary nature of defendant's statements without having the opportunity to view the videotaped recording of defendant's interview, which was shown at trial. Defense counsel moved for a mistrial, arguing that the jury's view of defendant's statement would be irreparably tainted by the testimony elicited about the trial court's earlier ruling about its admissibility.
A. I believe so, yes.
Q. Okay. And did the judge in fact rule that the confession was freely and voluntarily given that day?
A. Yes, she did.
Q. And didn't the judge deny the defendant's Motion to Suppress this evidence?
The trial court denied defense counsel's motion for a mistrial and instead opted to read the jury an admonition. Defense counsel objected to the denial of his motion for mistrial, but he accepted the substance of the admonition, which reads as follows:
The Court's pre-trial ruling on the voluntariness of the statements made by Mr. Eric McClain on May 9, 2009, [. . .] is a legal requirement necessary before the jury can hear any statement made by the defendant in a criminal matter. That is the extent of that limited impact this statement has on you, as jurors. As a matter of instructions and law, you are obligated to determine the weight or value this statement is to be accorded, if any. In determining the weight or value to be accorded a statement by the defendant, you should consider all of the circumstances under which he testified.After the trial judge read her admonition, trial proceeded with no further issues regarding this incident.
Finally, the Court's ruling [. . .] was made after relevant testimony of this witness, Lieutenant Anslum, a submission of a crime lab report, an affidavit supporting the search warrant you've heard about and search warrant, which was signed and granted by another judge, in the normal course of business, using the standard appropriate to that process which is probabl[e] cause. As you are aware, the burden that you are obligated to apply is beyond a reasonable doubt. You are also obligated to judge this witness, and all others that will come after him based on what you know of their actions and learned of in this courtroom only.
Under the authority of La. Code Crim. P. art. 771, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury. This article applies when such a remark is made by the district attorney and does not fall under the scope of La. Code Crim. P. art. 770, or when such a remark or comment is made by a witness, regardless of whether it falls under the scope of La. Code Crim. P. art. 770. See La. Code Crim. P. art. 771(1) & (2). In such cases where the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, upon motion of the defendant, the court may grant a mistrial. State v. Kersey, 406 So.2d 555, 560 (La. 1981). However, a mistrial is a drastic remedy, which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal without a showing of an abuse of that discretion. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.
In the instant case defendant argued that a mistrial was warranted because the testimony elicited from Lieutenant Anslum would cause the jury to ascribe credibility to defendant's statement simply because the trial judge had previously made a determination that the statement was freely and voluntarily given. Defense counsel was especially concerned about the testimony because of the fact that the trial judge ruled on defendants motion to suppress without viewing the video recording of his statement, which had been shown at trial.
We find that the trial court did riot abuse its discretion in denying defendant's motion for a mistrial. Defense counsel objected to the state's questioning almost immediately, and the trial judge carefully crafted an admonition which detailed both the differing legal standard which applied to her pretrial ruling and the ultimate obligation of the jury to weigh defendant's statement in light of the totality of the circumstances. Accordingly, on the record before us, we conclude that defendant did not suffer such substantial prejudice, as a result of the colloquy between the district attorney and Lieutenant Anslum, that he was deprived of any reasonable expectation of a fair trial.
This assignment of error is without merit.
COUNSELED ASSIGNMENTS OF ERROR 3 AND 4
In two related assignments of error, defendant argues that Louisiana Constitution Article I, § 17(A), that allows for non-unanimous jury verdicts, violates the right to a jury trial and the right to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, defendant argues that the enactment of its source provision in the Louisiana Constitution of 1898 was motivated by an express and overt desire to discriminate on account of race. Defendant was convicted in this case by a 10-2 jury vote.
We question whether the defendant properly raised the issue in the court below, reserving it for appellate review, because he did not file any pretrial or post-trial motions to declare the complained-of provision to be unconstitutional. Nevertheless, out of an abundance of caution, we will address the merits of these assignments of error.
Possession of cocaine with intent to distribute is punishable by imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence. See La. R.S. 40:967(B)(4)(b). Article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a non-unanimous jury does not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726-27 (La. 1982); State v. Shanks, 97-1885 (La. App. 1st Cir. 6/29/98), 715 So.2d 157, 164-65.
This court and the Louisiana Supreme Court have previously rejected the argument raised in defendant's assignments of error. See State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Smith, 2006-0820 (La. App. 1st Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352. In Bertrand, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, or Fourteenth Amendments. Moreover, the Bertrand court rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apodaca. Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 6 So.3d at 742-43. Thus, Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure article 782(A) are not unconstitutional and, therefore, not in violation of defendant's federal constitutional rights.
In Bertrand, the court only considered Article 782, while the defendant in the instant case attacks Article I, § 17A itself. We find this approach to be a distinction without a difference because Article 782 closely tracks the language of Article I, § 17A.
Apodaca involved a challenge to the non-unanimous jury verdict provision of Oregon's state constitution. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), decided with Apodaca, also upheld Louisiana's then-existing constitutional and statutory provisions allowing nine-to-three jury verdicts.
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Accordingly, these assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR 1
In his first pro se assignment of error, defendant argues that the trial court erred in failing to suppress his statements made to Lieutenant Anslum on April 9, 2009. Specifically, he contends that he was placed under duress and threatened to make these statements.
We have already addressed a portion of this assignment of error, respecting the statement defendant made to Lieutenant Anslum at his residence. For the reasons discussed above, defendant's first pro se assignment of error is without merit regarding the first statement he made on April 9, 2009.
In this pro se assignment of error, defendant also asserts that his second statement to Lieutenant Anslum on April 9, 2009, which was taken at the police station, should be suppressed for the same reasons as the first. We note that defendant made a filing in the trial court entitled "Defendant's Consolidated Pretrial Motions," which included a blanket motion-to-suppress all of his statements. However, at defendant's motion-to-suppress hearing, the only statement specifically addressed and sought to be suppressed was defendant's first statement, which was given at his residence. Because an argument for suppression of defendant's second statement was not raised before the trial court, it is not properly before this court for the first time on appeal. See La. Code Crim. P. arts. 703(F) & 841(A); La. Code Evid. art. 103(A)(1); see also State v. Peters, 546 So.2d 829, 831 (La. App. 1st Cir.), writ denied, 552 So.2d 378 (La. 1989) (noting that a new basis for a motion-to-suppress cannot be raised for the first time on appeal).
Even if we were to consider the merits of defendant's claim regarding his second statement to the police, we would still find that the circumstances of this statement do not warrant suppression. Before giving this second statement, defendant was read his Miranda rights and acknowledged that he understood and elected to waive them. Further, nothing in the videotaped recording of defendant's second statement allows us to conclude that he was forced, coerced, threatened, or in any other way induced to provide that statement.
This assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR 2
In his second pro se assignment of error, defendant contends that the trial judge abused her discretion and violated his due process rights by not viewing the two recorded confessions prior to ruling at the motion to suppress hearing.
This issue is not properly before this court on appeal because defendant did not raise it in the trial court. See La. Code Crim. P. arts. 703(F) & 841(A); La. Code Evid. art. 103(A)(1); see also Peters, 546 So.2d at 831. During the motion-to-suppress hearing, neither the state nor the defense introduced a videotaped recording of either of defendant's statements. In giving her reasons for finding defendant's first statement to be freely and voluntarily given, the trial judge explicitly noted that she had not seen either defendant's Miranda rights form or a video statement. She further noted that defendant did not object or raise any issue regarding those exhibits. At trial, during argument relating to defendant's above-discussed motion for a mistrial, defense counsel explained that the trial judge had not reviewed the videotaped recording of defendant's first statement at the motion-to-suppress hearing because of a copying error. Therefore, defense counsel was plainly aware at. the time of the motion to suppress hearing of the existence of the videotaped recordings. However, he did not object to the trial court's ruling on the motion to suppress before viewing the recording of either statement.
This issue is not reviewable on appeal.
PRO SE ASSIGNMENT OF ERROR 3
In his third pro se assignment of error, defendant argues that the videotaped recordings of his two confessions were illegally redacted, prohibiting the jury from weighing the totality of the circumstances surrounding each statement.
Again, this issue is not properly before this court on appeal because defendant did not object to the redaction in the trial court. See La. Code Crim. P. art. 841(A); La. Code Evid. art. 103(A)(1). In fact, the trial court explicitly drew the attention of both the state and the defense to the redactions, which she had ordered because the redacted portions bore "no relevance to this case." Both the state and the defense agreed that they had viewed the videotaped recordings as redacted, and neither side offered any objection about the redactions.
This issue is not reviewable on appeal.
PRO SE ASSIGNMENT OF ERROR 4
In his final pro se assignment of error, defendant argues that the search warrant and the application for the search warrant in this case were based on fabrications and fraud constituting intentional misrepresentations to gain illegal entry into his residence.
Yet again, this issue is not properly before this court on appeal because defendant did not raise it in the trial court. See La. Code Crim. P. arts 703(F) & 841(A); La. Code Evid. art. 103(A)(1); see also Peters, 546 So.2d at 831. We note that, as part of his consolidated filing mentioned earlier, defendant filed a blanket motion to suppress all physical evidence seized in violation of law. However, this document never specifically raised the issue of the validity of the search warrant or its supporting affidavit, and defendant never presented this issue to the trial court during any proceeding.
This issue is not reviewable on appeal.
For the foregoing reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.