State v. Taylor

• Decision Date: 03 April 1985
• Docket Number: 16,919-KW,No. 16,918-K,16,918-K
• Citation: 468 So.2d 617
• Parties: STATE of Louisiana, Appellee, v. Nicky D. TAYLOR, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 617

468 So.2d 617

STATE of Louisiana, Appellee, v.Nicky D. TAYLOR, Appellant.

No. 16,918-KW, 16,919-KW.

Court of Appeal of Louisiana Second Circuit.

April 3, 1985.

Rehearing Denied May 3, 1985.

Jack & Hudsmith by Wellborn Jack, Jr., Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., A.M. Stroud, III and John Broadwell, Asst. Dist. Attys., Shreveport, for appellee.

Before HALL, FRED W. JONES and NORRIS, JJ.

NORRIS, Judge.

Defendant, Nicky D. Taylor, was indicted in Caddo Parish for first degree murder.He subsequently moved to suppress various items of evidence seized from his home and pickup truck.After a lengthy hearing, the trial judge took the matter under advisement and rendered a written opinion several months later which suppressed the evidence seized from the pickup truck but denied the motion as to evidence seized from the home.Both the state and defendant applied to this court for writs challenging that decision and we granted both applications to review the correctness of the lower court ruling.

Defendant complains that the lower court erred in concluding that his wife validly consented to a search of the community residence contending that the consent was tainted by the illegality of his arrest and consequently was "fruit of the poisoned tree."

The state contends the lower court erred in suppressing the evidence taken from the pickup truck pursuant to a search warrant.It claims that defendant has failed to overcome the presumption of validity that attaches to a search warrant and, alternatively, that since the officers could have conducted a permissible search of the vehicle on February 12, 1984, they did not lose that right by impounding the vehicle and obtaining an invalid warrant.

FACTS

The evidence introduced at the suppression hearing is voluminous.The trial court's factual conclusions as to what transpired are for the most part amply supported by the record.Where we agree with these factual conclusions, we merely summarize and restate them.Where we disagree we will so state.

On February 10, 1984, the body of Jonathan Sherman was found near the Jimmie Davis Bridge in Caddo Parish.An autopsy revealed the victim died from two bullet wounds to the body.

On Sunday afternoon, February 12, 1984, Bill Gray, an investigator with the Bossier Parish District Attorney's Office, contacted Caddo Parish Chief Deputy Milton Almond and related information he had received from a confidential informant linking defendant with the murder and placed a portable radio/cassette player allegedly belonging to the victim in defendant's home in Bossier City.

Armed with this information, Almond assembled a "task force" of Caddo and Bossier law enforcement officers for a meeting in the Caddo Parish Sheriff's Office.Present at this meeting on the early evening of February 12 were Almond, Gray, J.W. Jones(chief investigator for the Caddo Sheriff's Department), Lt. Scotty Henderson(chief of detectives, Bossier City Police Department), Caddo Deputy Jimmy Crabtree(chief investigator on this particular case), and Caddo Deputy Richard Dunn.

During the meeting the information received by Gray and related to Almond was discussed and radio dispatcher, Doug Robertson, placed what was termed as a "routine" telephone call to the Bossier Parish Sheriff's Office to inquire whether that agency had any outstanding warrants for defendant.In response to the inquiry, Bossier Parish Deputy Sheriff Larry Sherrill checked the warrant file in the radio room and found what appeared to be an outstanding warrant slip.The slip referred to an old bench warrant (February 23, 1981) for failure to appear on an aggravated battery charge and had noted on it, "3-6-81 DA's office requests we hold up on this until 3-9-81 as he is to appear in court on this on that date."Because of the age of the slip and its notation, Sherrill was somewhat dubious of the warrant's validity and informed Robertson that he wanted to check the matter with his shift commander and would call him back.Sherrill could not remember whether or not he in fact checked with his shift commander, but he talked to the radio operator and discovered no further reason to doubt the warrant's validity.Sherrill called Caddo Parish back and confirmed to Lt. Henderson that Bossier Parish did have an outstanding warrant for defendant's arrest and gave Henderson the pertinent information from the slip.Henderson, in turn, relayed this information to the group and the decision was made to arrest defendant on the outstanding warrant.

The evidence conclusively shows that the so-called warrant had in fact been recalled on March 9, 1981, when defendant appeared in court, pled guilty, and paid a fine on the aggravated battery charge.This information was of record and contained on the copy of the warrant slip filed in the Bossier Sheriff's records department.Furthermore, the radio room had been furnished this information via a "dead warrant" memo on March 9, 1981, which should have caused the radio room operators to pull the subject slip from the "active file" and place it in the "dead file."Through error this had not been done.

Nevertheless, armed with the erroneous information Henderson received from Sherrill, the "task force" proceeded to the Taylor home on Kristen Street in Bossier City to arrest defendant.The purpose behind this action was never clearly stated by the officers, but the trial court concluded that the officers "expected to arrest Mr. Taylor on the 1981 warrant ... and to search the home with Mrs. Taylor's consent, or if necessary to obtain a search warrant."This conclusion is amply supported by the evidence.

At the time the officers proceeded to effect defendant's arrest, they did not have probable cause to arrest defendant on the murder charge, nor did exigent circumstances exist.

In route, the help of a uniformed Bossier City Policeman, Kevin Ross, was enlisted by radio and the group arrived at slightly different times in different cars around 9:00 p.m. Ross and Lt. Henderson approached the door and knocked.Nicky Taylor, his wife, Betty Sue Taylor, and a friend, Debra Riley, were inside eating dinner.Defendant answered the door.The officers asked if he was Nicky Taylor and he responded affirmatively.They informed defendantthey had a warrant for his arrest for aggravated battery.By this time, Mrs. Taylor and Debra Riley had overheard and approached the doorway.Defendant and his wife told the officers that the aggravated battery charge had been disposed of by payment of a fine and that Mrs. Taylor had the receipt in her purse.This statement did not alter the situation and defendant began to remove items from his pockets and hand them to his wife.Defendant asked to see a warrant and the officers told him he could see it at the police station.Mrs. Taylor grabbed hold of defendant.The officers, according to the unrefuted testimony, then reached inside the residence, took hold of the defendant and pulled him out on the porch where he was handcuffed, frisked and then taken to the Bossier City Jail by Ross and Dunn and booked as a fugitive from Bossier Parish.Ross testified the time shown on the booking sheet, 9:14 p.m., was the actual time of the arrest.¹

Concurrent with or immediately after defendant's departure, Henderson, Crabtree and Jones gained entrance to the Taylor home.The testimony is conflicting as to whether they were invited in by Mrs. Taylor or were simply admitted entry by her upon their request to talk with her.The evidence does not, however, show a forcible entry.

While Henderson, Crabtree and Jones were in the Taylor residence, Almond and Gray remained outside in the vicinity of their vehicles to assist in any manner necessary.

The testimony as to what actually happened in the Taylor residence between 9:14 p.m. and approximately midnight is conflicting and certainly subject to diverse interpretations.

It is undisputed that Mrs. Taylor was initially upset and crying.She testified that her emotional state never improved because the officers in effect took control over her and her residence and that she simply functioned as a "robot" during the entire evening, obeying their every command.The officers, on the other hand, testified Mrs. Taylor made them coffee, fed them cookies, and cooperated by talking freely about her husband and helping them find the evidence seized.They admit she was upset in the beginning and to some extent throughout the evening, but testified her distress was emotionally caused by the fear that her husband or his family would retaliate against her for being cooperative.

Soon after the officers' entry into the living room, Mrs. Taylor was informed that her husband was a suspect in a murder.The officers requested that they be allowed to talk with Mrs. Taylor alone, and Debra Riley went into the master bedroom.The officers testified Mrs. Taylor talked about the defendant.Mrs. Taylor testified the officers began questioning her concerning her whereabouts and her husband's whereabouts on the date of the murder.The conversation in the living room was interrupted by a telephone call from defendant to his wife.Mrs. Taylor talked to her husband in the living room in the presence of the officers.Thereafter, the subject of the ownership and presence of handguns came up and Mrs. Taylor proceeded to the master bedroom to retrieve two handguns she owned and show them to the officers.Henderson followed her.What happened in the bedroom is the subject of some dispute.Both Mrs. Taylor and Debra Riley testified that after Henderson was shown the two pistols, he took Mrs. Taylor by the arms, told her the officers were investigating a murder, knew she was lying and if she didn't talk with them he could charge her as an accessory after the fact.Henderson did specifically deny he touched Mrs. Taylor in the bedroom but was never asked on...