Opinion
NO. 2023-K-0817
01-17-2024
STATE of Louisiana v. Leonard PATTY
Jason Rogers Williams, Andre Jeanfreau, District Attorney’s Office, Parish of Orleans, GIO South White Street, New Orleans, LA 70110, COUNSEL FOR PROSECUTION/RELATOR Alexis Chernow, Orleans Public Defenders, 2700 Tulane Avenue, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH, NO. 549-503, SECTION "J", Honorable Darryl A. Derbigny, Judge
Jason Rogers Williams, Andre Jeanfreau, District Attorney’s Office, Parish of Orleans, GIO South White Street, New Orleans, LA 70110, COUNSEL FOR PROSECUTION/RELATOR
Alexis Chernow, Orleans Public Defenders, 2700 Tulane Avenue, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT
(Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Karen K. Herman)
Judge Paula A. Brown
1Relator, State of Louisiana (the "State"), seeks supervisory review of the district court’s November 30, 2023 judgment, which granted Defendant/Respondent Leonard Patty’s (the "Defendant") motion to suppress statement. The district court found that the Defendant unambiguously expressed his desire to communicate with police through a lawyer, but that the interrogating officer took his statement nonetheless, with no counsel present. For the reasons that follow, we grant the writ application, but deny the relief requested by the State.
BACKGROUND
On August 4, 2020, the State filed a bill of information charging Defendant with second degree murder, a violation of La. R.S. 14:30.1; possession of a firearm or weapon by a felon, a violation of La. R.S. 14:95.1; and obstruction of justice, a violation of La. R.S. 14:130.1. The incident giving rise to the arrest and charges faced by the Defendant occurred on June 30, 2019, The Defendant appeared for arraignment on September 1, 2020, and entered pleas of not guilty for all charges. Following, on September 3, 2020, the Defendant filed a motion for suppression of statements, evidence, and identification. On September 14, 2022, Defendant filed a 2second motion to suppress statements, evidence, and identifications. The district court conducted a probable cause hearing and a hearing on Defendant's motion to suppress his statement on September 21, 2023. After the hearing and argument by counsel, the district court took the matter under advisement. On November 30, 2023, the district court granted Defendant's motion to suppress the statement. The State requested that the district court file written reasons for its ruling. In response, the district court issued a per curiam on December 7, 2023. On December 19, 2023, the State filed a written notice of its intention to file a writ. This timely writ application followed.
DISCUSSION
New Orleans Police Department Detective Sarah Cherny ("Det. Cherny") went to the Orleans Parish central lockup on March 8, 2020, and met with the Defendant in an effort to obtain a statement from him. Det. Cherny testified at the September 21, 2023 hearing that when she first encountered the Defendant, she was in possession of a Body Worn Camera ("BWC") that was being held with her files against her body, causing the video to be blacked out and the audio to be somewhat hard to discern. Det. Cherny introduced herself to the Defendant and informed him that she wanted to speak to him about the June 30, 2019 incident. Both Det. Cherny and the State concede that at that time the Defendant uttered words to the effect that he did not know how things worked, if he did not have a lawyer present that she might twist his words and he did not know how it would go. Det. Cherny replied that he did not have to speak with her. As Det. Cherny began to inform the Defendant that if he changed his mind he could contact her, the Defendant began to speak about medications and COVID. More words were exchanged, but the audio quality of the recording is mostly garbled at this point in 3their dialogue. After multiple replays of the recording, it appears to this Court that the Defendant requested the presence of a lawyer a second time. Immediately following, the Defendant can be heard saying he would answer some questions, at which point Det. Cherney placed the BWC on the table and then advised the Defendant of his Miranda rights by use of a paper form she presented to him. The video and audio on the electronic recording are clear from this point on until the Defendant ended the interview by again requesting the presence of his lawyer.
[1–3] Our Supreme Court has consistently held that "[o]nce an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities un- til counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." State v. Payne, 01-3196, pp. 8-9 (La. 12/4/02), 833 So. 2d 927, 935 (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). This Court’s review of the electronic recording of Defendant’s exchange with the interrogating officer finds it to be largely unintelligible prior to the issuance of a Miranda warning form. In fact, after reviewing the electronic recording twice at the probable cause hearing, Det. Cherney was unable to confirm that the Defendant had asked to speak to his lawyer, but acknowledged that she responded that he did not have to speak with her. She further testified that "[she] would have to listen to that [recording] a billion times to hear that. [She was] sorry. It’s not clear to [her]. And maybe that’s what it says, but it’s such a hard thing to hear." Consequently, this Court is loath to engage in mere conjecture as to whether the Defendant or the interrogating officer initiated further communication. It is well settled that "[t]he [district] court is afforded great discretion when ruling on a motion to suppress and its ruling will 4not be disturbed absent an abuse of that discretion. State v. Nelson, 18-0975, p. 5 (La. App. 4 Cir. 11/29/18), 260 So.3d 770, 774 (citing State v. Wilder, 2009-2322, p. 2 (La. 12/18/09), 24 So.3d 197, 198). "[A]ppellate courts review [district] court rulings under a deferential standard with regard to factual and other trial determinations …. " Id. (quoting State v. Wells, 2008-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580).
CONCLUSION
Accordingly, we cannot find that the district court abused its vast discretion when it granted Defendant’s motion to suppress statement. Therefore, the writ application is granted, but the relief is denied.
WRIT GRANTED; RELIEF DENIED
HERMAN, J., DISSENTS WITH REASONS
1I believe that the writ application should be granted and the trial court’s ruling on the motion to suppress statement be reversed. My review of the video recording of the defendant’s statement shows: the defendant expressed his concern that the State may twist his words if he did not have an attorney present; the detective advised the defendant that he did not have to speak with her; and that the defendant continued to speak with the detective. I find the defendant’s reference to an attorney is not an unambiguous request for counsel. See State v. Center, 2003-1987, p. 36 (La. App. 4 Cir. 4/7/04), 872 So.2d 552, 571 (finding that the defendant’s statement "I already told you everything and if this is gonna [sic] continue I’ll just wait for a lawyer" was not an "unequivocal invocation of his right to counsel"). Moreover, I find that because the defendant initiated additional communication with the detective, he was subject to further questioning. State v. Payne, 2001-3196, pp. 8-9 (La. 12/4/02), 833 So. 2d 927, 935 (citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) and stating an accused "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police") (emphasis 2added). Accordingly, I find that the trial court erred in granting the motion to suppress statement and would grant the State’s writ application.