Opinion
NO. 2014 KA 0097
06-06-2014
STATE OF LOUISIANA v. DONOVAN QUEEN
CAMILLE A. MORVANT, II DISTRICT ATTORNEY DIANA M. SANDERS ASSISTANT DISTRICT ATTORNEY THIBODAUX, LA ATTORNEYS FOR STATE OF LOUISIANA MARY CONSTANCE HANES LOUISIANA APPELLATE PROJECT NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT DONOVAN QUEEN
NOT DESIGNATED FOR PUBLICATION
Appealed from the
17th Judicial District Court
in and for the Parish of Lafourche, Louisiana
Trial Court No. 518322
Honorable Jerome J. Barbera, III, Judge
CAMILLE A. MORVANT, II
DISTRICT ATTORNEY
DIANA M. SANDERS
ASSISTANT DISTRICT ATTORNEY
THIBODAUX, LA
ATTORNEYS FOR
STATE OF LOUISIANA
MARY CONSTANCE HANES
LOUISIANA APPELLATE PROJECT
NEW ORLEANS, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
DONOVAN QUEEN
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
PETTIGREW, J .
The defendant, Donovan Queen, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1. He pled not guilty and, following a jury trial, was found guilty of the responsive offense of attempted manslaughter, a violation of La. R.S. 14:27 and 14:31. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied by the district court. The defendant was sentenced to fifteen years at hard labor. He now appeals. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS
On February 9, 2013, the defendant was visiting his ex-girlfriend, Lindsey Francis, at her parents' home where she lived in Thibodaux, Louisiana. He became angry when she received a text message on her cellular telephone and refused to let him view it. He "snapped" and started choking her. When Lindsey began screaming, the defendant let go and punched her twice in her face. Lindsey yelled for her mother, Stephanie Alexander, who ran into the living room along with her stepfather, Joseph Alexander. Mr. Alexander observed the defendant hit Lindsey in her face with a closed fist. He pulled the defendant away from Lindsey, pushed him outside, and told him to go home.
The two argued while they were outside, and the defendant refused to leave. Mrs. Alexander and Lindsey stood side-by-side inside the mobile home doorway, which was approximately three or four feet from where the defendant and Mr. Alexander were standing. The defendant pulled out a gun and fired two shots toward the women. The defendant then ran into the house after Lindsey, who was running toward her bedroom. Lindsey testified that the defendant ran after her, put the gun to her head, and told her that he loved her. She heard the gun make a "click" noise, and she fell to the floor thinking that she had been shot. The defendant was gone when she got up. Lindsey was taken to the hospital where doctors informed her that a bullet fragment hit her foot. Two days later, the defendant turned himself in to the Thibodaux Police Department and gave a videotaped statement. Officers investigating the scene located two projectiles inside the home and collected two shell casings in the yard.
ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, the defendant argues that the district court erred in refusing to replace juror Timmy Hebert with the alternate juror after he disclosed that he knew the victim's mother, Mrs. Alexander. Specifically, the defendant contends that Hebert's relationship with Mrs. Alexander influenced him in favor of the State and made it difficult for him to remain impartial.
During voir dire examination, the State disclosed the names of possible witnesses. The district court judge asked if any of the potential jurors knew the witnesses. Hebert did not state that he knew Mrs. Alexander. After trial began, Hebert disclosed to the judge that when he saw Mrs. Alexander, he realized that he was acquainted with her through his job. He explained that he did not disclose this during voir dire because he did not remember her by name.
According to the record, Hebert is a salesman for Coca-Cola. GoBear Food Mart, Mrs. Alexander's place of employment, is one of the businesses he visits to discuss product placement. Once this information was disclosed to the judge, Hebert was called into the judge's chambers to disclose the information to counsel. The judge asked Hebert if it would cause him any difficulty in proceeding and whether he could still be a fair and impartial juror. He stated that he saw Mrs. Alexander on a weekly basis and that they did make conversation. However, Hebert stated that he believed that he could still be a fair and impartial juror.
Defense counsel objected to Hebert remaining on the jury and moved to strike him and replace him with the alternate juror. Defense counsel argued that Hebert saw Mrs. Alexander on a weekly basis and that he had exchanged pleasantries with her prior to entering the courthouse.
The judge called in Hebert for further questioning. Hebert clarified that he talked to management at GoBear about the display of products and that Mrs. Alexander is an assistant manager there. He saw her on a weekly basis, but as of a month prior to trial, he no longer handled the GoBear account. He stated that there may be some point in the future when he would again handle the GoBear account, but not that he knew of at the time of trial. The judge asked him if he believed that he could continue in the case and render a fair and impartial verdict based on the evidence, and he stated that he could. When defense counsel questioned Hebert, he clarified that he was a relief salesman before he was a salesman. As a relief salesman he went to GoBear approximately four or five times a year. When he became a salesman, he went to GoBear for two months before his route changed.
Pointing out that Hebert no longer (at least for the foreseeable future) had any contact with Mrs. Alexander and that Hebert stated that it would not influence him in reaching a verdict, the district court denied the defendant's challenge for cause.
The grounds for a challenge for cause are set out in La. Code Crim. P. art. 797, which provides, in pertinent part:
The state or the defendant may challenge a juror for cause on the ground that:
. . . .
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence[.]
A district court judge has the discretion to replace a juror with an alternate upon a finding that the juror has "become unable to perform or disqualified from performing" his or her duty. La. Code Crim. P. art. 789; State v. Derouselle, 99-3283, p. 1 (La. 4/28/00), 761 So.2d 1269, 1270 (per curiam). Under the circumstances, we cannot say that the district court abused its discretion in failing to sustain the defendant's challenge.
Hebert maintained that he could remain fair and impartial. Furthermore, he only knew Mrs. Alexander through work, and would not have any contact with her for the foreseeable future. Nothing Hebert said at the hearing indicated that he was anything more than a business acquaintance with Mrs. Alexander. In fact, Hebert did not even remember Mrs. Alexander's name when it was called out during the reading of the witness list. Although the two were acquainted through work, it does not appear that their relationship was sufficient to preclude Hebert from arriving at a fair verdict or that it would cause Hebert any bias. Therefore, the district court properly denied the request to remove him and replace him with an alternate juror. This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, the defendant argues that the district court abused its discretion in allowing the State to introduce his videotaped statement into evidence at trial. Specifically, he contends that his statement was not voluntarily made and his request for an attorney during his interrogation was not "ambiguous."
Initially, we note that the defendant never moved to suppress the statement. Louisiana Code of Criminal Procedure article 703F provides:
A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress. [Emphasis added.]On a procedural basis, the defendant forfeited his right to object to the introduction of the statement in question at trial through his failure to file a pretrial motion to suppress. Moreover, after reviewing the evidence, we are unable to find that the district court erred in allowing the introduction of the defendant's statement. See State v. Rogers, 98-2501, pp. 17-18 (La. App. 1 Cir. 9/24/99), 757 So.2d 655, 665, writ denied, 99-3526 (La. 6/16/00), 764 So.2d 962.
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. See State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751.
The State bears the burden of proving that an accused who makes an inculpatory statement or confession while in custodial interrogation was first advised of his rights and made an intelligent waiver of those rights State v. Davis, 94-2332, p. 8 (La. App. 1 Cir, 12/15/95), 666 So.2d 400, 406, writ denied, 96-0127 (La. 4/19/96), 671 So.2d 925. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court promulgated a set of safeguards to protect the therein delineated constitutional rights of persons subject to custodial police interrogation. The warnings must inform the person in custody that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In addition to showing that the Miranda requirements were met, in order to introduce evidence of a defendant's statement or confession, 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. La. R.S. 15:451.
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 statement, or confession is admissible, and the testimony of the interviewing officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. See State v. Maten, 2004-1718, pp. 11-12 (La. App. 1 Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544; State v. Plain, 99-1112, pp. 6-7 (La. App. 1 Cir. 2/18/00), 752 So.2d 337, 342-343.
A hearing was conducted out of the jury's presence to determine whether the defendant's statement was freely and voluntarily given. At the hearing, Detective Aaron Manuel, with the Lafourche Parish Sheriff's Office, testified that he conducted an interview with the defendant on February 11, 2013, after the defendant turned himself in. The interview was videotaped, and Detective Manuel read the defendant his Miranda rights before the questioning began. The defendant signed that he understood his rights and initialed that he waived those rights.
During the interview, the defendant asked, "I can get a lawyer and talk to you about this?" The detective told the defendant that it was up to him and that he had a right to a lawyer. The defendant said something relative to going to jail. Detective Manuel replied, "[t]hen talk to me, tell me what happened." The defendant responded, "I didn't kill her, I know that." Detective Manuel then asked, "Then what happened? Why you [sic] started shooting at her?" Nothing was said for approximately one minute before the detective told the defendant that "people make mistakes." The defendant then stated that he wanted "her people to forgive [him]" and the interview continued. According to the detective, at no time did the defendant say that he did not wish to answer any more questions and get a lawyer.
The district court judge viewed that portion of the videotaped statement and indicated that it was satisfied from the detective's testimony and the videotape that the defendant made a knowing and intelligent waiver of his rights. The court stated:
[A]lthough he asked at one point I can get a lawyer, what I heard was that [sic] him say: I can get a lawyer to talk to you? And then the response by the detective about whatever that meant. I do not interpret that as a request by the defendant for an attorney at that point and a request that the interview end.
In Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994), the Supreme Court held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." The Supreme Court noted that, while it often would be "good police practice" for the investigating officers to ask clarifying questions when a suspect makes an ambiguous or equivocal statement regarding counsel, the decision stops short of a rule requiring officers to ask clarifying questions. "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him," Davis, 512 U.S. at 461-462, 114 S.Ct. at 2356.
The record establishes a knowing and voluntary waiver of Miranda rights by the defendant prior to his statement. The record and evidence also establish that Detective Manuel made it clear to the defendant that it was his right to have an attorney and that it was up to him if he wanted to consult with one. Nonetheless, the defendant continued to talk to the detective. After considering the detective's testimony and the videotaped statement, we find no error or abuse of discretion in the district court's determination that the defendant did not make an unambiguous request for an attorney during his statement. Accordingly, the statement was properly admitted at trial. This assignment of error has no merit.