State v. Shea

• Decision Date: 25 January 1982
• Docket Number: Nos. 81-KA-0377,81-KA-0378,s. 81-KA-0377
• Citation: 421 So.2d 200
• Parties: STATE of Louisiana v. Kevin Michael SHEA.
• Court: Louisiana Supreme Court

Page 200

421 So.2d 200

STATE of Louisiana v.Kevin Michael SHEA.

Nos. 81-KA-0377, 81-KA-0378.

Supreme Court of Louisiana.

Jan. 25, 1982.

On Rehearing Oct. 18, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Sonia D. Peters, Dale G. Cox, Asst. Dist. Attys., for plaintiff-appellee.

Howard F. Fish, Jeanette G. Garrett, Shreveport, for defendant-appellant.

SWIFT, Justice Ad Hoc.^*

Defendant, Kevin M. Shea, has appealed two armed robbery convictions in Caddo Parish, one of Tony Tuminello at his Phillips 66 service station on July 2, 1979, and the other of Delores C. Dick at the Quick Mart Grocery Store on June 29, 1979.The first appeal involves Shea's conviction by a unanimous jury after a trial.The other is a "Crosby type" appeal in connection with a guilty plea bargain.¹The defendant was sentenced in the first instance to 17 years and in the other case to 5 years, both at hard labor.The sentences were imposed to run consecutively, without benefit of parole, probation or suspension of sentence.

FACTS

Mr. Tuminello was robbed of cash and checks by two men after one had fired a pistol shot into the floor.When they left he immediately called the police and gave them descriptions of the robbers.

Three Shreveport police officers were having coffee at a restaurant approximately three blocks from Tuminello's filling station at the time and they were notified by radio of the armed robbery shortly thereafter.The report identified the robbers as two white males, one a blonde and the other with long dark hair, both wearing blue jeans, one with a plaid shirt and the other with a blue shirt.Leaving the restaurant a minute or so later, the officers saw two individuals who met this description walking on the sidewalk at a brisk pace.When they failed to stop on being ordered to do so and after one man made a motion with his hand as if to remove something from his waist or pocket, the police drew their weapons and apprehended the two suspects.One of these was the defendant, who had in his shirt pockets a wad of money and also some checks payable to Tuminello's business.The other, Justice M. Ratliff, had in his possession a revolver with five live shells and one spent cartridge.The two persons were taken to the police station and subsequently identified by Mr. Tuminello and by Ms. Dick in a six-man line-up.

Both suspects were advised of their Miranda rights at the scene when arrested and also at the police station.At the station Shea told the police he did not want to make any statements until he saw a lawyer and the interview was terminated at that point.

The next afternoon, July 3, 1979, just prior to Shea's transfer to the Caddo Parish prison, the detectives again approached Shea and asked him if he wanted to talk about the case.No inquiry was made as to whether he had hired a lawyer or if he was indigent.This accused was again informed of the Miranda rights and again he acknowledged this in writing.Thereafter, although he refused a recorded interview, Shea gave a brief oral statement to the detectives admitting that he and his companion had robbed the service station.He said that he pulled the gun and demanded money from Mr. Tuminello.The latter gave him money and checks.As he was unable to carry these and the gun at the same time, he gave the gun to his accomplice and they fled.Shea also admitted that he was involved in the other robbery.

This defendant testified at the trial that he had repeated his desire for a lawyer before making the inculpatory statement.However when the detectives told him they already knew everything and that it would be better for him to cooperate, he told them what happened.The police denied that Shea asked for counsel or was promised anything on this occasion.

Ratliff subsequently pleaded guilty to both offenses and was sentenced.

ASSIGNMENT OF ERRORNO. 1(BOTH CASES)

The defendant first contends that the district court erred in denying his motion to suppress the inculpatory statement given on July 3, because it was obtained in violation of his rights under the 5th and 14th amendments of the United States Constitution, as set forth by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

In State v. Thucos, 390 So.2d 1281(La.1980)this court pointed out the necessity for "scrupulous honoring" of a defendant's assertion of his right to counsel, saying:

"Before a confession or inculpatory statement can be admitted in evidence, it must be established that the accused who makes the statement during custodial interrogation was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966);R.S. 15:451.The Supreme Court in Miranda also stated: 'Once warnings have been given, the subsequent procedure is clear....If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.'Although it has been recognized that an accused may later change his mind and waive the same rights which he earlier asserted, [State v. Manning, 380 So.2d 46(La.1980), andState v. Dominick, 354 So.2d 1316(La.1978) ] once a defendant has invoked his constitutional right to remain silent or his right to counsel, the validity of any subsequent waiver depends upon the 'scrupulous honoring' of that right by the police, Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313(1975);State v. Manning, supra.The state's burden here is a heavy one.State v. Mouton, 366 So.2d 1336(La.1978);State v. Peevy, 321 So.2d 324(La.1975).The courts indulge in every reasonable presumption against the waiver of fundamental constitutional rights.Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424(1977);Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680(1942);State v. Manning, supra."

More recently, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378(1981), the United States Supreme Court said:

"Second, although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, seeNorth Carolina v. Butler, supra, 441 U.S. , at 372-376, 99 S.Ct. [1755], at 1757-1759[60 L.Ed.2d 286], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police."(Emphasis added.)

And after mentioning later cases dealing with the "undisputed right" under Miranda to remain silent and to be free of interrogation before consulting with a lawyer the court stated:

"We reconfirm these views and to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel."(Emphasis added.)

In a concurring opinion Justices Powell and Rehnquist indicated an uncertainty as to whether this decision really prohibited the police from initiating an inquiry as to whether a suspect has changed his mind about talking to them without an attorney.However, it seems quite clear to us that the majority of that court has so ruled.

In the present case it is undisputed that the police did initiate such an inquiry on July 3, after having been clearly informed by the defendant on the previous evening that he would not make any statements without counsel.Consequently, there was a violation of the additional standard governing police interrogation of a suspect imposed by Edwards v. Arizona, supra.

The state alternatively contends that if the court erred in this respect the error was harmless because there is overwhelming evidence of the defendant's guilt in the record of the Tuminello robbery case.

In State v. Gibson, 391 So.2d 421(La.1980), this court adopted the harmless error rule applied in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967), saying:

"It appears that the Chapman test, i.e., 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and that 'the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt,' will assist this Court to fulfill both of the requirements of state law.

From the record it seems quite possible that the jury could have convicted this defendant of the Tuminello robbery without consideration of the inculpatory statement in question.However, for reasons hereinafter set forth it is unnecessary for us to decide whether or not this error was harmless beyond a reasonable doubt.

We note that Edwards was rendered on May 18, 1981.Prior thereto, of course, law enforcement authorities were unaware of any prohibition against an officer asking a suspect, who had been warned of his Miranda rights and refused to give any information without counsel, whether he had changed his mind and was then willing to be interrogated without a lawyer.In this case Shea's inculpatory statement was obtained, his motion to suppress was tried and denied, he was tried and found guilty by a jury in one case, pled guilty in the other and he was sentenced...