State v. Poullard

• Decision Date: 31 December 2003
• Docket Number: No. 03-940.,03-940.
• Parties: STATE of Louisiana v. Brian Keith POULLARD.
• Court: Court of Appeal of Louisiana — District of US

863 So.2d 702

STATE of Louisiana v. Brian Keith POULLARD.

No. 03-940.

Court of Appeal of Louisiana, Third Circuit.

December 31, 2003.

James Edward Beal, Jonesboro, LA, for Defendant/Appellant, Brian Keith Poullard.

Earl B. Taylor, District Attorney, Opelousas, LA, for Plaintiff/Appellee, State of Louisiana.

Brian Keith Poullard, St. Gabriel, LA, Pro se.

Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.

THIBODEAUX, Judge.

The Defendant, Brian Keith Poullard, appeals his second degree murder conviction by a jury on the basis that the trial court improperly admitted into evidence an inculpatory statement made to a law enforcement officer. The statement should have been suppressed, he argues. While we agree that the statement, "f—k you, I'll do the same thing to you and uh—if I don't do it myself, I can call someone to do it while I'm in jail," was erroneously admitted after the Defendant invoked his right to counsel, the error was harmless in light of the overwhelming evidence of guilt against the Defendant. We, therefore, affirm the Defendant's conviction and sentence.

FACTS

The Defendant was arrested for the murder of Gerald Lee Guidry on November 30, 2001 at Mr. Guidry's used car lot in Opelousas. After his arrest, the Defendant was immediately Mirandized by Deputy Ryan Young. He was brought to the Eunice Police Department. A videotape made in the booking room is somewhat unclear, but it appears the Defendant told Officer Stagg "no lawyer, can't talk." Officer Stagg informed the Defendant that he did not have to discuss the incident. Officer Tony Kennedy then read the Defendant his rights and continued to talk about an unrelated incident.

After the Defendant was taken to a holding cell, Lieutenant Varden Guillory of the Eunice Police Department approached him and asked "why he didn't feel any remorse for what he did—for taking a person's life." The Defendant, according to Lieutenant Guillory, responded by saying, "f—k you, I'll do the same thing to you and uh—if I don't do it myself, I can call someone to do it while I'm in jail." Lieutenant Guillory did not Mirandize the Defendant before speaking to him because he intended only to have a "casual conversation" with the Defendant.

The trial court concluded the statement was made freely and voluntarily. It refused to suppress the statement and observed that five Mirandized rights forms had been executed within a short period of time by the Defendant.

LAW AND DISCUSSION

A trial judge's ruling on whether or not a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Thornton, 351 So.2d 480, 484 (La.1977). Before a confession may be introduced into evidence, the state must establish that the accused was advised of his constitutional rights under Article 1, Section 13 of the Louisiana Constitution and the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Simmons, 443 So.2d 512 (La.1983). In Miranda, the United States Supreme Court recognized the coercive atmosphere created by police custody and established a procedural mechanism to safeguard the exercise of a defendant's Fifth Amendment rights. Before interrogating a suspect in custody, law enforcement officials must inform the suspect that he has the right to remain silent, that his statements may be used against him at trial, that he has a right to an attorney, and that if he cannot afford an attorney, one will be appointed for him.

Even when a defendant has not expressly invoked his rights under Miranda, "[t]he courts must presume that a defendant did not waive his rights." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). A waiver is not established by showing that a defendant was given the complete Miranda warnings and thereafter gave an incriminating statement. 2 Wayne R. LaFave, Jerold Israel, Nancy King, Criminal Procedure, § 6.9(d). Moreover, it is well-settled that a "heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980).

State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537.

When ... a defendant has expressly waived his Miranda rights, the question becomes "whether the purported waiver was knowing and intelligent ... under the totality of the circumstances." Abadie, supra, 612 So.2d [1] at 5 [ (La.), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993) ], quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983)

. This "totality of the circumstances" includes "the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Solem v. Stumes, 465 U.S. 638, 647, 104 S.Ct. 1338, 1344, 79 L.Ed.2d 579 (1984),

quoting Butler, supra, 441 U.S. at 374-375,

99 S.Ct. at 1757-1759. See also State v. Wilson, 467 So.2d 503 (La.1985),

cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); re'hg denied, 474 U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d 567 (1985) (diminished intellectual capacity of defendant only a factor to be considered in determining whether Miranda waiver knowing and intelligent).

In reviewing the correctness of a trial judge's ruling on a motion to suppress a confession, "we are not limited to the evidence adduced at the hearing(s) on this motion, but rather may consider all pertinent evidence adduced at trial." State v. Brooks, 92-3331, p. 10 (La.1/17/95), 648 So.2d 366, 372, citing State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979)

(listing cases).

State v. Green, 94-0887, pp. 10-11 (La.5/22/95), 655 So.2d 272, 280-81, writ denied, 00-3351 (La.8/24/01), 795 So.2d 339.

Defendant's Understanding of His Rights

The Defendant alleges his statement to Officer Guillory should have been suppressed because he did not understand his rights when they were read to him by Detective Young. Testimony at the hearing on the Motion to Suppress indicated Detective Young Mirandized the Defendant at the time he was arrested. Detective Young testified at trial regarding the Defendant's understanding of his rights as follows:

A. I told him he had the right to remain silent, anything you say may could—would be used against him in a court of law, he had the right to have an attorney present before and during any questioning. If he decided to answer questions now without an attorney present, he had the right to stop answering questions any time until an attorney was present.

Q. And did he give you any indication that he understood fully what you said?

A. The defendant was making comments. I was not sure what exactly he was saying. He was—his attitude was very excited. I wouldn't say violent, but excited. And I don't know if he fully understood what was told to him, but it was told to him in a plain manner where it should have been understood by any reasonable person.

Q. And in that situation, at that time you felt he was a reasonable person?

A. I felt that he should have understood what he was told, yes, ma'am.

Based on this testimony we cannot say that the Defendant understood his rights when he was Mirandized by Detective Young. However, Officer Kennedy Mirandized the Defendant shortly after he arrived at the Eunice Police Department and the video tape indicates the Defendant stated he understood those rights. The Defendant was also Mirandized by Deputy Vernon Marks who testified that the Defendant indicated he understood his rights and signed a waiver of rights form. The Defendant had been advised of his rights three times before he spoke to Officer Varden Guillory. The Defendant has not presented evidence that he did not understand his rights when he was informed of them by Officer Kennedy and Deputy Marks.

Failure of Officer Guillory to Mirandize the Defendant

The Defendant alleges that his statement to Officer Varden Guillory should have been suppressed because Officer Guillory did not Mirandize him.

This court has held that Miranda rights need not be repeated before each interrogation. State v. Bolden, 95-749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6,writ denied,96-1272 (La.11/22/96), 683 So.2d 286,cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 799 (2000); State v. Bordelon, 597 So.2d 147 (La.App. 3 Cir.), writ denied,600 So.2d 678 (La.1992).

The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Abadie, 612 So.2d [1] at 6 [ (La.1993) ] (citing [Rhode Island v.] Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90).

State v. Payne, 01-3196, p. 14 (La.12/4/02), 833 So.2d 927, 938.

Although Officer Guillory testified that he went to the Defendant's cell in order to have a "casual conversation," the question by Officer Guillory was reasonably likely to elicit an incriminating response and was the functional equivalent of interrogation.

The Defendant had been Mirandized on three previous occasions, the last time being at 2:02 p.m. The statement at issue made by the Defendant to Officer Guillory occurred at approximately 4:00 p.m. Officer Guillory was not required to Mirandize the Defendant before speaking to him inasmuch as there had not been a significant break in the interrogation process. In Bordelon, 597 So.2d 147, this court held that police were not required to readvise a defendant of his Miranda rights when questioning him a second time eleven hours after initial interrogation during which his rights were read.

"No Lawyer, Can't Talk"

During the booking process, the Defendant said...