94-252 La.App. 5 Cir. 10/12/94, State v. Martin

• Citation: 645 So.2d 752
• Parties: 94-252 La.App. 5 Cir
• Decision Date: 12 October 1994
• Court: Court of Appeal of Louisiana (US)

Page 752

645 So.2d 752

94-252 La.App. 5 Cir. 10/12/94

STATE of Louisiana v. Janice MARTIN.

No. 94-KA-252.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 12, 1994.

Writ Denied March 10, 1995.

Philip E. O'Neill, Gretna, for defendant-appellant.

John M. Mamoulides, Dist. Atty., Vincent Paciera, Jr., Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff-appellee.

Before GAUDIN, WICKER and GRISBAUM, JJ.

[94-252 La.App. 5 Cir. 1] GRISBAUM, Judge.

The defendant appeals her jury verdict of theft over $500. We affirm.

ISSUES

The defendant assigns as error the following:

(1) Whether a confession by a defendant to a private citizen may be introduced as evidence at trial where the defendant maintains the confession was coercively obtained;

(2) Whether the State of Louisiana (the State) may display an exhibit prepared during trial testimony, but not admitted into evidence, to the jury while the jury is physically examining evidence of the trial;

(3) Whether there is sufficient evidence in the record for a rational trier of fact to find defendant guilty of theft over $500; and

(4) Whether a three-hour videotape of defendant during her work shift was exculpatory evidence which the State failed to produce to defendant prior to trial pursuant to Brady.

[94-252 LA.APP. 5 CIR. 2] FACTS

Defendant, Janice Martin, worked as a cashier and manager at the Avondale Spur Station, a gas station and convenience store owned by Dennis Stewart. Her duties included recording sales totals for the previous day into a monthly journal ledger, which were then transferred by the owner to the bookkeeper via computer data.

In May 1992, Dennis Stewart hired two security firms to investigate suspected thefts from his store. Investigators came to the store and interviewed employees, including the defendant. During defendant's interview, she signed a statement admitting that she stole $12,000 during the course of her employment. In the statement defendant indicated she rang up voids on the cash register, tore out the void section of the cash register tape and threw it away. The record indicates defendant recorded lesser amounts of sales in the journal ledgers than actually occurred and then took the difference between the actual sales and the figure recorded. Defendant maintains her statement to the investigator was coerced and she only signed it to end the interview.

On September 17, 1993, after a three-day trial, Ms. Martin was convicted by a six-person jury for theft of money valued over $500. She was sentenced to four years imprisonment at hard labor, which was suspended. Instead, defendant was placed on a four-year active probation and was required to pay $12,000 in restitution and $1,000 in fines.

ANALYSIS--ISSUE ONE

The record shows that the defendant filed a pre-trial motion to suppress her confession on the basis it was coerced. After numerous continuances by the defendant, the hearing on the motion was scheduled to be heard on September 14, 1993, the very morning of the trial. However, it appears that a discussion on [94-252 La.App. 5 Cir. 3] the motion to suppress was held in chambers wherein the trial court ruled the statement was admissible. ¹

We note that the United States Supreme Court, in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), has held that, in order for a defendant to claim his confession is inadmissible because it was involuntary in violation of the Due Process Clause of the United States Constitution, there must be a state actor. Importantly, the Supreme Court further indicated that where a state actor was not involved, the question of whether a confession is admissible is determined by state laws governing the admission of evidence.

La.R.S. 15:451 provides: "Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises." The word "purposes" in this statute "Should be 'purports.' The Supreme Court, in quoting the section, has, at least twice, inserted '[purports]' following 'purposes'. See State v. Joseph, 1950, 217 La. 175, 46 So.2d 118; State v. Lanthier, 1943, 201 La. 844, 10 So.2d 638." La.R.S. 15:451, fn. 1.

We find this statute mandates the requirement that all confessions, regardless of whether a state actor is involved, must be proven to be voluntary. However, if a state actor is involved, defendant must be advised of his Miranda rights prior to making a statement. See State v. Perry, 502 So.2d 543 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987).

The question of whether a confession is voluntary for the purposes of determining its admissibility is a question to be determined by the trial judge and because the trial judge's ruling on the voluntariness of a confession is based on conclusions of credibility and weight of testimony, it is entitled to great deference which will not be disturbed on appeal unless there is no evidence to support the [94-252 La.App. 5 Cir. 4] ruling. See State v. Bourque, 622 So.2d 198 (La.1993) and State v. Lee, 577 So.2d 134 (La.App. 1st Cir.1991), writ denied, 580 So.2d 667-68 (La.1991).

La.Code Crim.P. art. 703, in pertinent part, states:

D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warranted.

E. (1) An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant's testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits.

Because our review of defendant's motion to suppress the confession shows she simply made a broad allegation claiming her confession was obtained "under the influence of threats, duress, fear and intimidation and promises of reward or other inducements and/or without being advised of constitutional rights," and did not allege specific facts that, if true, would entitle her to relief, an evidentiary hearing on the motion was not required.

In ruling defendant's confession to be admissible, the trial court had to necessarily find the statement to be voluntary. While we do not have a transcript of what transpired during...