State v. Green, 98-1388.
| Decision Date | 31 March 1999 |
| Docket Number | No. 98-1388.,98-1388. |
| Citation | 735 So.2d 723 |
| Parties | STATE of Louisiana, Appellee, v. Joseph Gene GREEN, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Charles F. Wagner, Dist. Atty., James M. Buck, for State of Louisiana.
John Michael Lawrence, New Orleans, for Joseph Gene Green.
Before: DOUCET, C.J., SAUNDERS, and SULLIVAN, JJ.
Defendant, Joseph Gene Green, was charged by bill of indictment with second degree murder, a violation of La.R.S. 14:30.1. He was tried before a twelve-person jury between March 10 and 14, 1998, and found guilty as charged. Thereafter, the court sentenced him to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals on the basis of sixteen assignments of error.
This case involved the death of Rita Rablais on October 24, 1994, in Rapides Parish, Louisiana. An investigation of her death revealed that a number of individuals, including the Defendant, had been involved in the savage beating and death of Ms. Rablais.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. We note one error patent.
The Defendant was not informed of the three-year time limit for filing postconviction relief as is required by La.Code Crim.P. art. 930.8. Thus, the district court is directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).
By assignment of error number one, the Defendant argues that the trial court erred by not granting his Motion to Suppress Evidence. By assignment of error number thirteen, the Defendant contends that the trial court erred by not granting his Motion for a New Trial. The Defendant states that the issues in his Motion for a New Trial were the same issues as contained in assignment number one and he therefore incorporates the two assignments. The Defendant contends that the police did not comply with the requirements of State in the Interest of Dino, 359 So.2d 586 (La.1978). The State notes in its brief that State v. Fernandez, 96-2719 (La.4/14/98). 712 So.2d 485, overruled the Dino case. While the State is correct, we note that the charged offense happened on October 24, 1994. The Motion to Suppress was heard on June 19, 1995, and the trial was held on March 10-14, 1998. Thus, the murder and the trial thereof took place before the Dino case was overruled. However, after reviewing the case in accordance with the mandates of Dino, we find said mandates were met. Thus, this court need not resolve whether Fernandez should be applied retroactively, since the lesser standard of totality of the circumstances now required under Fernandez would likewise be met.
In Dino, the Supreme Court expanded the Miranda requirements when a juvenile is subjected to police interrogation. The Louisiana Supreme Court detailed the requirements for validly obtaining a statement from a juvenile as:
. . . the purported waiver by a juvenile must be adjudged ineffective upon the failure by the State to establish any of three prerequisites to waiver, viz., that the juvenile actually consulted with an attorney or an adult before waiver, that the attorney or adult consulted was interested in the welfare of the juvenile, or that, if an adult other than an attorney was consulted, the adult was fully advised of the rights of the juvenile.
In his brief, the Defendant specifically states that his statements were the product of improper police pressure and coercion; that his aunt was unable to retain an attorney for him because of her indigence; that his aunt did not understand his legal rights; and that he was not able to engage in meaningful consultation with his aunt about the waiver of his Miranda rights.
On June 19, 1995, a Motion to Suppress was held wherein the Defendant sought to suppress four statements he made to the police. The first statement the Defendant sought to suppress concerned a statement he made on November 23, 1994. Detective Weatherford testified that as part of their investigation, the police were talking to people in the area where the homicide occurred in an effort to obtain information. An officer spoke to the Defendant on November 23, 1994, but the Defendant did not give the officer any relevant information concerning the crime. The second statement the Defendant gave was on December 8, 1994. Detective Weatherford testified that their investigation led them to believe that the Defendant may have overheard a conversation or a description of what had taken place on Kelly Street. Detective Weatherford testified that on December 8, 1994:
A. He [Defendant] told us that he had in fact been engaged in a conversation between he and several others, [including] Frederick Gradley, [and] Cedric Howard, where Gradley had described going into a house, robbing an old woman and tying her up and putting her in a closet. Killing her also.
This conversation was recorded. Detective Weatherford testified that with regard to these two conversations, the Defendant was not a suspect. However, the following day, the Defendant became a suspect when Frederick Gradley confessed to the crime and named the Defendant as being involved. The Defendant was then taken into custody. Due to the fact that he was a juvenile (fifteen years old at the time), his aunt was called to the police station. Ms. Lowe testified that the Defendant had been living with her for approximately four years, that the Defendant's father had passed away, and that the Defendant's mother did not see her son on a regular basis. Prior to questioning the Defendant on December 9, 1994, Detective Weatherford testified that he read the Defendant and his aunt the Defendant's rights. Ms. Lowe acknowledged that she was present while the Defendant was read his rights, and that she understood those rights. Ms. Lowe further testified,
Detective Weatherford testified that on December 12, 1994, the Defendant requested to speak with the investigators. Prior to speaking to the Defendant, Ms. Lowe was requested to meet the investigators and to be present during the interview with the Defendant. The Defendant and Ms. Lowe were again advised of the Defendant's rights and they indicated that they understood.
In considering each of the Defendant's contentions, we observe that the Defendant states that his statements were the product of improper police pressure and coercion. However, the Defendant does not point to anything in the record to support his argument. Detective Weatherford testified that the officers did not force, threaten or coerce the Defendant during the December 9 or 12, 1994 interrogations. Detectives Billingsley and Green likewise testified that the Defendant was not forced, threatened or coerced to give his statements on December 9 or 12, 1994. With regard to the December 9, 1994 interrogation, Ms. Lowe testified at the Motion to Suppress that:
A. All five of 'em. All five of 'ern talked to him.
Q. All at the same time?
A. Same time.
Q. Was there a lot of confusion?
A. Well, you listen for five of 'em screaming at you at the same time. Talking. Is it confused to you? Yeah.
Q. Okay.
A. You know, sometime that'll break `em. They must have been trying to break him, you know, or something or other. But all five of 'ern was talking to him at the same time.
With regard to the December 12, 1994 meeting with the Defendant, Ms. Lowe testified:
Q. Did you make any complaints about the police officers' interrogation?
A. No. They all ... four of 'em went out and allowed Detective Jones to talk with him and me.
Based on the testimony in the record, we find the Defendant was not subjected to improper police pressure and coercion.
The Defendant further states in his brief that his aunt was unable to retain an attorney for him because of her indigence and that his aunt did not understand his legal rights. However, the record establishes that on two separate occasions the rights of the Defendant were read to him and his aunt. On each occasion, Ms. Lowe indicated that she understood those rights and she signed the rights form indicating her understanding.
Additionally, the Defendant states that he was not able to engage in meaningful consultation about the waiver of his Miranda rights with his aunt. This court has held that a private consultation is not a prerequisite to compliance with Dino. State v. Gachot, 609 So.2d 269, 274 (La. App. 3 Cir.1992); State v. Carter, 569 So.2d 1025 (La.App. 3 Cir.1990). Therefore, the failure of the police to allow Defendant to privately consult with his aunt is no basis for the suppression of Defendant's statements.
Finally, the Defendant argues that the police did not fully advise his aunt of his rights nor explain to her the consequences of his waiver. The record, however, fails to support this contention. Rather, it indicates that on two separate occasions, Ms. Lowe, along with the Defendant, were informed of his Miranda rights, and indicated that they understood those rights.
Accordingly, we find the requirements of Dino were met in this case. The Defendant's aunt, whom he had lived with for the previous four years, was with the Defendant during each custodial interrogation and advised him to tell the officers the truth. The Defendant's aunt was advised of the charge against him. The Defendant and his aunt were advised of the Defendant's rights and indicated that they...
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