State v. Alexander

• Decision Date: 29 January 2020
• Docket Number: 2019-KK-00645
• Citation: 347 So. 3d 608
• Parties: STATE of Louisiana v. Donovan ALEXANDER
• Court: Louisiana Supreme Court

347 So.3d 608

STATE of Louisiana

v.Donovan ALEXANDER

No. 2019-KK-00645

Supreme Court of Louisiana.

January 29, 2020

John Thomas Fuller, IV, and Marcus Oran DeLarge, for Applicant.

Hon. Leon A. Cannizzaro, Jr., District Attorney, Scott Gerard Vincent, and Donna R. Andrieu, for Respondent.

Hughes, J.^*

We granted certiorari in this case to determine whether the court of appeal erred in reversing the district court judgment that granted the defendant's motion to suppress an uncounseled statement.After reviewing federal and state authorities, we have determined that when the police failed to inform the defendant that his attorney sought to speak with him and failed to allow his attorney access to the defendant when the attorney was on the scene of the arrest and asked to see his client, the statement is inadmissible.Accordingly, we reverse the ruling of the court of appeal and reinstate the district court's judgment.

I.FACTS AND PROCEDURAL HISTORY

DefendantDonovan Alexander was charged by bill of information with possession with intent to distribute heroin, a violation of La.R.S. 40:966(A)(1), and possessing a firearm while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E).The defendant entered a plea of not guilty and filed a motion to suppress statement.At the hearing on the motion to suppress, the following facts were established.

The police investigation of the defendant began in June 2016 when a confidential informant provided officers with a tip that the defendant was distributing heroin in the New Orleans metro area.The confidential informant further provided that the defendant stored heroin and firearms at 8243 Curran Boulevard, in New Orleans, and lived on Vintage Drive, in Kenner.Police surveilled the defendant on three occasions and watched him make many stops throughout the New Orleans area as well as at the two addresses given by the confidential informant.

On June 21, 2016 officers began surveilling the Vintage Drive residence in Jefferson Parish.The police approached the residence and addressed the defendant.Officers received consent from defendant to search the residence and seized two pounds of marijuana, a firearm, and Carispodol pills.The defendant was arrested at the scene.After his arrest, officers traveled to the address at 8243 Curran Boulevard in Orleans Parish.The female occupant there gave consent to search via consent form and gave directions to officers where they could find the defendant's "stash."From the bottom drawer of a dresser in a bedroom officers recovered 8 grams of heroin, a loaded firearm, plastic bags, packaging material, and a scale.An arrest warrant for possession with intent to distribute heroin and possessing a firearm while in possession of a controlled dangerous substance was prepared based on the evidence recovered from the Curran Boulevard search.

DEA Special Agent Joseph Blackledge testified that the defendant was read his rights and waived them at the scene of his arrest and also prior to being interviewed at Kenner Police Headquarters.Specifically, the defendant signed a DEA advice of rights form.While the defendant was detained at Kenner Police Headquarters, police informed him of the search and recovery from the Curran Boulevard residence.The defendant then told officers that the drugs and gun were his and that he did not want the woman who lived there to be charged.This is the statement sought to be suppressed.

At some point during the search of the Vintage Drive residence, attorney Dwayne Burrell arrived on the scene.Attorney Burrell is the defendant's cousin and had previously represented him.¹He testified that the defendant's girlfriend called him and said law enforcement was at the house on Vintage Drive.When Attorney Burrell arrived, he spoke with the defendant's girlfriend.He next identified himself to officers on the scene as the defendant's attorney and attempted to stop the search of the home.At one point, Attorney Burrell showed officers his Bar card.Attorney Burrell was told by officers that drugs had been found and that the defendant was being detained.Attorney Burrell then told the officers that he wanted to speak with the defendant and that the defendant was not going to make any statements.According to Attorney Burrell, he was told by law enforcement that the defendant was going to be booked in Gretna and that he could speak with the defendant then.He testified that he did not know which officer told him the defendant would be taken to Gretna as there were officers from multiple agencies on the scene.At no point was Attorney Burrell informed that the defendant would be brought to Kenner for questioning.Attorney Burrell testified that at that point in time the defendant was in a police unit, in the living room of the house, or perhaps had been taken away by then.

Agent Blackledge testified that the defendant was brought from the scene of his arrest to Kenner Police Headquarters.Agent Blackledge said he did not recall anyone named Dwayne Burrell coming to the Kenner Police Department and testified if he had known the defendant's attorney wished to be present, he would have stopped the interview and allowed the attorney to be present.Attorney Burrell eventually spoke with the defendant the next day when he was booked in Gretna.

After a hearing, the district court granted the motion to suppress.In written reasons, the district court stated:

The attorney in question was the cousin of the defendant.He testified at the suppression hearing that he was emphatic in explaining to the officers on the scene that he did not want the defendant to be questioned by law enforcement agents and that he wanted to speak with the defendant.He testified that he identified himself to the officers as an attorney, even showing them his ‘bar card.’...

There was no evidence indicating that the statement had been obtained from the defendant before the attorney made his intentions known to the officers....

The State failed to specifically rebut the serious allegations made by the defense attorney.The State did not call any of the officers on the scene in Kenner to deny the allegations of the attorney; nor to explain any conversations they may have had with the attorney.The State did not provide any testimony regarding any attempts the officers may have made to ascertain if the defendant was indeed being questioned by one or more of their fellow officers.

State v. Alexander , No. 531-509, pp. 1-2(Orleans Criminal District Court2/11/19).

The district court reasoned that where there are allegations of police misconduct in connection to statements given by an accused, the State must specifically rebut these allegations.Id. at p.2(citingState v. Montejo , 2006-1807(La.5/11/10), 40 So.3d 952 ).

The court of appeal reversed, relying on Moran v. Burbine , 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410(1986), andState v. French , 2011-576(La. App. 5 Cir.11/29/11), 79 So.3d 1155, which heavily relies on State v. Carter, 94-2859(La.11/27/95), 664 So.2d 367, each discussed infra .State v. Alexander , 2019-0036(La. App. 4 Cir.4/3/19), 267 So.3d 682.The court of appeal determined that the defendant was properly advised of his rights and validly waived those rights prior to giving his inculpatory statement as the right to counsel is the right of the client rather than the attorney and can thus be waived without counsel's participation.Id. at 687-88.

I.STANDARD OF REVIEW

Appellate courts review lower 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.

State v. Wells , 2008-2262(La.7/6/10), 45 So.3d 577, 580.A district court's decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion.Id. at 581.

II.LAW AND ANALYSIS

At a hearing on a motion to suppress a statement, the State bears the burden of proving the free and voluntary nature of the confession given while in custody.State v. Scarborough , 2018-1791(La.11/14/18), 256 So.3d 265, 265(per curiam).In order for an inculpatory statement or confession to be admitted into evidence, the State must affirmatively show that the statement was free and voluntary and not the result of fear, duress, intimidation, menace, threats, inducements, or promises.La.R.S. 15:451;La.C. Cr. P. art. 703(D);State v. Anderson , 2006-2987(La.9/9/08), 996 So.2d 973, 994.The State must also prove that the defendant was advised of his Miranda rights and voluntarily waived those rights.Scarborough , 256 So.3d at 266.A court will examine the totality of the circumstances surrounding the statement to determine its voluntariness.State v. Manning , 2003-1982(La.10/19/04), 885 So.2d 1044, 1075.

A.Federal Law

The Fifth Amendment of the U.S. Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself ...."The U.S. Supreme Court has stated that custodial questioning creates "compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."Miranda v. Arizona , 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).The warnings derived from Miranda v. Arizona are meant to combat these "compelling pressures" in order to protect one's Fifth Amendment privilege against self-incrimination.Id.Under Miranda , a suspect must be informed of his or her right to remain silent, that anything said can and will be used in court proceedings to secure a conviction, and of his or her right to an attorney before questioning begins.Id. at 444, 86 S.Ct. 1602.If the individual indicates at any time that he or she wishes to remain silent, or requests an attorney, the interrogation must end.Id. at 444-45, 86 S.Ct. 1602.

There are numerous opinions from federal courts...