State v. Harris
| Citation | 627 So.2d 788 |
| Decision Date | 01 December 1993 |
| Docket Number | No. 25,539-KA,25,539-KA |
| Parties | STATE of Louisiana, Appellee, v. James Harmon HARRIS aka Herman Harris, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Indigent Defender Office by Alan Harris, Shreveport, for appellant.
Richard P. Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty. by Rebecca I. Bush, H. Ted Cox, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
Before LINDSAY, HIGHTOWER and STEWART, JJ.
Defendant, James Harman Harris, a/k/a Herman Harris, was arrested and charged with three counts of aggravated rape. At the time the rapes occurred, Harris was age 30, and the victim was age 9. Harris waived his right to a jury trial and was tried before a judge. The trial court convicted him of three counts of aggravated rape, LSA-R.S. 14:42, and sentenced him to three concurrent life sentences without benefit of probation, parole, or suspension of sentence. Harris appeals his conviction, asserting ten assignments of error which he numbered 3 through 12. Because these assignments have no merit, his conviction is affirmed.
In December of 1991, "Herman" Harris, a friend of the victim's family, began residing in the victim's home. Shortly thereafter, the 9-year-old victim began experiencing vaginal itching and burning upon urination and was brought to the LSU Medical Center on January 15, 1992 at which time she was examined by Dr. David Tatori. On January 23, 1991, the victim returned to the LSU Medical Center making the same complaints. On that occasion, she was examined by Dr. Steiner who treated her with some type of a sulphur-based drug. Once again, on February 10, 1992, making the same complaints, the victim returned to the LSU Medical Center at which time Ms. Cheryl Fernandez, a pediatric nurse practitioner, performed an examination and concluded that the 9-year-old child had been sexually abused. Nurse Fernandez immediately informed Dr. Turnage who then performed a second examination and reached the same conclusion as Nurse Fernandez.
Nurse Fernandez then alerted Jean Moffett of the Caddo Parish Child Protection Agency and Detective Smith of the Shreveport Police Department who then began an investigation for possible child abuse. Several days later, after being informed by the LSU Medical Center that the 9-year-old victim had tested positive for gonorrhea and chlamydia, Ms. Moffett traveled to the victim's home to request that all male members of the household be tested for venereal diseases and that they give their consent to the release of their medical records. Also, when Nurse Fernandez learned that the victim tested positive for venereal diseases, she questioned the victim further. After it was explained to her how venereal diseases are contracted, the victim admitted having sex with Harris.
A few days later on February 20, 1993, after reviewing Harris' medical records, Ms. Moffett discovered that on January 28, 1992, Harris tested positive and was treated for both gonorrhea and chlamydia. Ms. Moffett then related this information to Detective Smith. On February 24, 1992, Detective Smith phoned Harris and requested that they meet at his office in the youth bureau. After being informed of his Miranda rights, but before being placed under arrest, Harris gave a statement whereby he admitted having vaginal sexual intercourse with the victim on at least three different occasions.
Thereafter, Harris was arrested by the Shreveport Police Department, indicted by a Caddo Parish grand jury, tried before a judge alone, convicted, and sentenced for three counts of aggravated rape. Defendant appeals his conviction, asserting several assignments of error. Finding no merit to the assignments, we affirm.
Harris filed a motion to suppress in which he sought to declare as inadmissible two medical release forms executed by him and all medical information obtained as a result of their execution. The basis of the motion was that because Jean Moffett, an official of the Caddo Parish Child Protection Office, did not advise him of his Miranda warnings before he executed the medical release forms, the forms were illegally obtained. After an evidentiary hearing, the trial court denied the motion. Harris challenges as error the trial court's denial of this motion. This assignment has no merit for several reasons.
First, Miranda warnings are required as a prerequisite to the admissibility of a statement taken from a suspect under custodial interrogation. State v. Ealy, 530 So.2d 1309, 1314 (La.App.2d Cir.1988), writ denied, 536 So.2d 1234 (La.1989) (emphasis ours). See also, State v. Pelt, 448 So.2d 1294 (La.1984), cert. denied, 469 U.S. 825, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984). Harris concedes that he was not in custody.
Second, Miranda warnings are not required to validate a consent search. U.S. v. D'Allerman, 712 F.2d 100 (5th Cir.1983), writ denied, 464 U.S. 899, 104 S.Ct. 254, 78 L.Ed.2d 240 (1983); State v. Williams, 353 So.2d 1299 (La.1977), cert. denied, 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed.2d 1138 (1978). When Harris executed the forms, he did nothing more than consent to a search of his medical information. His consent was neither "testimonial" nor "communicative" and, therefore, was not a statement against which Miranda was intended to protect. See Ealy, supra, at 1315.
Harris argues in brief that, because Ms. Moffett turned over all evidence that she obtained in her investigation, including these test results and that "[t]o claim that Ms. Moffett was not a law enforcement officer is, for all practical purposes, not really true." Harris executed two medical consent forms at the request of Ms. Moffett, a case worker for the child protection agency. We note that Ms. Moffett was not a police officer, and did not become one by sending her investigative file to the district attorney for prosecution. However, we do not address this argument because we have already determined that the execution of each release form involved no custodial interrogation and no testimonial or communicative statement.
Harris' primary complaint on appeal is that "he should have been informed, in some form or fashion, that he was the subject of a sexual abuse case and that what he was doing could be used against him." The record reveals that, before Harris executed the forms, Ms. Moffett explained that in order for her to obtain his medical information, he would need to give his consent by signing the forms. Thus, he was informed that by executing the forms, he was consenting to the release of his medical information. The record contains no indication or allegation that Harris involuntarily consented to the search of his medical records. He argues on appeal that it was an uninformed consent, but not that it was an involuntary consent. Moreover, the state presented unrebutted evidence at the hearing that Harris was neither coerced nor threatened into signing either of the two medical release forms. Thus, the state met its burden of showing that Harris' consent to the search of his medical records was freely and voluntarily given, and therefore, valid.
Because there was no requirement that Miranda apply in this situation, this assignment has no merit.
Harris argues that a statement he gave to Detective Smith at the youth bureau should be suppressed because under the totality of the circumstances, the statement was not freely and voluntarily given. He claims that the statement and his arrest were "tainted" by Ms. Moffett's improper methods of obtaining the medical release forms which produced the evidence that led to his arrest.
On February 24, 1993, Detective Smith called Harris on the phone and asked him to come into his office so that they could straighten out the matter. Harris acquiesced and went to Detective Smith's office at the youth bureau on his own.
The admissibility of a confession is in the first instance a question for the trial court. Its conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are clearly contrary to the evidence. See State v. Hicks, 607 So.2d 937, 942 (La.App.2d Cir.1992).
At the hearing on the motion to suppress, the evidence shows that defendant signed a Miranda warning form customarily used at the youth bureau and was advised of his Miranda rights. The record reveals that Harris made a free and voluntary confession. As discussed above, Ms. Moffett properly obtained Harris' signature on the medical release forms. After hearing the witness and all the evidence regarding this motion, the district court concluded that Harris freely and voluntarily gave the statement after he was fully advised of his Miranda rights. We find no abuse of the trial court's discretion regarding this assignment.
This assignment of error lacks merit.
The grand jury indictment charged Harris with three counts of aggravated rape which occurred between January 1, 1992 and February 24, 1992. In his "Motion for Bill of Particulars," Harris requested that the state specify, as to each count of the indictment, the date, time of day, and place at which each count was alleged to have occurred. The state responded that it was not required to furnish the date, time of day, and place at which each count was alleged to have occurred. Based on the fact that the state was unable to make the bill of particulars more specific, the district court denied Harris' motion for the requested information.
Harris argues that, because LSA-Const. Art. I, Sec. 13 provides that the accused shall be adequately informed of the nature and cause of the accusation against him, and due to the nature and complexity of this case, he was entitled to more specific information about when the offenses occurred.
The function of a bill of particulars is to inform the accused of...
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