Preview:

STATE OF LOUISIANA VERSUS CHARLES ALLEN
COURT OF APPEAL,

NO. 06-KA-778 FIFTH CIRCUIT FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

OEllED APR 2 4 2007

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 03-6803, DIVISION "J" HONORABLE STEPHEN J. WINDHORST, JUDGE PRESIDING APRIL 24, 2007

WALTER J. ROTHSCHILD
JUDGE
Panel composed of Judges Walter J. Rothschild, Fredericka Homberg Wicker, and Greg G. Guidry

PAUL D. CONNICK, JR. DISTRICT ATTORNEY
Twenty-Fourth Judicial District Parish of Jefferson

TERRY M. BOUDREAUX ANNE WALLIS DONALD ROWAN ASSISTANT DISTRICT ATTORNEYS
200 Derbigny Street Gretna, Louisiana 70053

COUNSEL FOR PLAINTIFF/APPELLEE BRUCE G. WHITTAKER
Attorney at Law Louisiana Appellate Project

P. O. Box 791984
New Orleans, Louisiana 70179-1984

COUNSEL FOR DEFENDANT/APPELLANT CHARLES ALLEN
Defendant/Appellant (In Proper Person)

Camp J - CUDA - 3/L - 14
Louisiana State Prison Angola, Louisiana 70712

AFFIRMED: CASE REMANDED WITH INSTRUCTIONS

Defendant, Charles Allen, was indicted by a grand jury on November 20, 2003 and charged with second degree murder in violation of LSA-R.S. 14:30.1. He pled not guilty and filed several pre-trial motions, including a motion to suppress his confession which was denied after a hearing conducted during trial. After a two-day trial, a jury found him guilty as charged by a vote of eleven to one. Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. In a brief filed by defense counsel, defendant appeals on the basis that it was error to deny the motion to suppress the confessions and he also assigned as error all errors patent. In a supplemental brief filed by defendantpro se, defendant assigns 28 errors by the trial court. For the reasons stated herein, we affirm defendant's conviction and sentence.

FACTS
At approximately 11:00 p.m. on September 24, 2003, police responded to a 911 call at 913 11* St. When they arrived, they found the victim, Jairo Pinzon,

-2-

lying inside the residence near the front door with gunshot wounds. The victim was transported to Charity Hospital where he later died. He had suffered seven gunshot wounds to his body. During the course of the investigation, Detective Richard Russ learned that the defendant was an associate of the victim, that the two had been business partners at one time, and that the two were no longer talking. Detective Russ, along with Detective Eric Becnel, spoke to the defendant on September 29, 2003. The defendant stated he had worked with the victim on and off since late 1996 or early 1997 as a kitchen installer but had started his own company approximately a year and a half earlier. He stated he last saw the victim one month prior to the murder at which time the two argued over a business matter. The defendant then proceeded to give Detective Russ information about the victim's drug use, sexual relationships, and financial situation. The defendant also confirmed his earlier statement to the police that he owned a few guns, including a .45 caliber and 9mm. After the defendant's first statement to the police, the police received the autopsy report which revealed the victim was shot with both a .45 caliber and a 9 mm gun. Remembering the defendant stated he owned both types of guns, the police went to the defendant's house in Madisonville to see if he would voluntarily relinquish his guns for ballistic testing. The defendant agreed and subsequent ballistic tests positively identified the defendant's guns as the murder weapons. An arrest warrant for the defendant was obtained and he was arrested as he left the victim's funeral. Upon his arrest, the defendant gave a statement in which he admitted killing the victim. He stated he feared for his life and believed the victim would kill him if he did not kill the victim first. He explained he rented a car, drove to the victim's home at a time he knew the victim would not be home, entered the home through the back door, climbed into the attic, waited for the

-3-

victim to come home, and shot the victim with both guns as the victim walked under the attic opening. The defendant corroborated his confession during his testimony at trial.

DISCUSSION
Defendant first argues on appeal that the trial court erred in refusing to suppress his confession because his two requests for counsel were not honored by the police.' He maintains he first requested counsel during his transport from St. Charles Parish, where he was arrested, to Jefferson Parish. He asserts his second request for counsel was made after the pre-interview and before the taped statement. The State responds that defendant's requests were not unequivocal invocations of his right to counsel. The State further contends the evidence shows defendant's confession was voluntary. Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Franklin, 03-287 (La. App. 5

Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La. 3/12/04), 869 So.2d 817. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the United States Supreme Court held that the Fifth Amendment gives a suspect subject to custodial interrogation the right to consult with an attorney during

questioning. State v. Payne, 01-3196 (La. 12/4/02), 833 So.2d 927, 934; Miranda
v. Arizona, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. The police are required to
i Defendant gave two statements to the police. The first statement was made on September 29, 2003 while the police were investigating the murder and prior to defendant's arrest. The second statement was made after defendant's arrest on October 3, 2003. This argument relates to the second statement, although defendant argues in his pro se briefthat the first statement should have been suppressed as well.

-4-

explain this right to the suspect before the custodial interrogation, "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived ofhis freedom of action in any significant way," begins. State v. Payne,

supra at 934, citing Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980), quoting Miranda v. Arizona, 384 U.S. at 444, 86
S.Ct. at 1619. The safeguards regarding the Miranda right to counsel are triggered by both a custodial setting and official interrogation. State v. Payne, supra at 934. After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. Davis v. United States, 512 U.S. 452, 461, l 14 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). Whether the accused actually invoked his right to counsel is an objective inquiry. State v. Payne, 833 So.2d at 935, citing Davis v. United States, 512 U.S. at 458-459, 114 S.Ct. at 2355. In order to invoke his right to counsel, the suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable police officer, in the circumstances, to understand his statement to be a request for an attorney. _Id. See also, State v. Leger, 05-0011 (La. 7/10/06), 936 So.2d 108, 135. The invocation ofthe right to counsel during the custodial interrogation "requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." State v. Payne, 833 So.2d at 935, quoting Davis v. United States,

512 U.S. at 459, 114 S.Ct. at 2355.
Once a suspect has asked to have an attorney present, he is not subject to any further interrogation by the authorities until counsel has been made available to him, unless the suspect initiates further communication, exchanges or conversations with the police. State v. Payne, 833 So.2d at 935, citing Edwards v.

Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). A -5-

cessation of questioning is not required, if the suspect makes a reference to an attorney that is ambiguous or equivocal, which causes a reasonable police officer, in light of the circumstances, to understand only that the suspect might be invoking the right to counsel. State v. Payne, supra at 935, citing Davis v. United States, 512 U.S. at 458, l 14 S.Ct. at 2355. (emphasis in original). In analyzing whether there has been a direct, clear, unequivocal, and unambiguous request for counsel, courts must give a broad, rather than narrow, interpretation to the suspect's request. State v. Payne, 833 So.2d at 936, citing

Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The
admissibility of a confession or statement is a determination for the trial court and the trial court's ruling will not be overturned unless the preponderance of the evidence clearly favors suppression. State v. Gant, 06-232 (La. App. 5 Cir.

9/26/06), 942 So.2d 1099, l123.2
During the suppression hearing, Detective Eric Becnel stated he advised the defendant of his Miranda rights at the time he arrested him in St. Charles Parish and again when he placed the defendant into the car prior to transporting him to Jefferson Parish. Detective Becnel testified the defendant stated he understood his rights. Detective Becnel explained that he and the defendant held a conversation during the transport. At some point, he told the defendant his bosses would want to know, "did you do this or didn't you do this," to which the defendant replied he thought he might want to speak to an attorney. Detective Becnel told the defendant it was his constitutional right and that he would give the defendant time to decide once they arrived at the police station. At the police station, the defendant was given cigarettes and water at his request and was given 15-20 minutes in an open area without handcuffs to decide
2 A writ, #2006-K-2529, was filed with the Louisiana Supreme Court on October 20, 2006 but no ruling has been issued to date.

-6-

whether he wanted an attomey. Thereafter, while Detective Becnel and the defendant were "shooting the breeze," the defendant stated he was willing to go ahead and provide a statement. The defendant was brought into an office and was interviewed by Detective Becnel, in the presence of Detective Richard Russ. During this interview, defendant confessed to killing the victim. Detective Becnel advised the defendant that he needed a taped statement at which time the defendant stated he might want to speak to an attomey about contacting the district attomey's office about working out an insanity plea or deal. The defendant stated he needed to think about it and indicated he was hungry. He was given food from McDonald's at his request, ate the food, smoked a cigarette, and then stated he was ready to give a statement. At the commencement of the taped statement, the defendant's Miranda rights were reviewed and the defendant agreed he was waiving his rights. The defendant testified during the suppression hearing that he asked for an attomey twice during the transport to Jefferson Parish but was never given an opportunity to call an attomey. He also stated he requested an attomey before his taped statement but was told by the police that without his statement he would prosecuted for first or second degree murder as opposed to manslaughter, a statement denied by Detective Becnel. At the conclusion of the hearing, the trial court denied the motion to suppress defendant's confession. The trial court commented that Detective Becnel testified consistently and that the court believed his testimony. The trial court further noted defendant appeared to be intelligent, understood his right to counsel, and understood that he did not have to answer questions but that he proceeded to give a statement. The trial court found the statement to be voluntary.

-7-

On appeal, the defendant does not claim that he was not advised of his Miranda rights or that he did not knowingly and voluntarily waive those rights. Instead, he claims he requested an attorney during the custodial interrogation and that his request was ignored. Based on the circumstances of this present case, we fail to find the trial court erred in denying the defendant's motion to suppress his confession.

In Davis v. United States, 512 U.S. 452, 461, l 14 S.Ct. 2350, 2356, 129
L.Ed.2d 362 (1994), the defendant made a remark to law enforcement officers during an interview, after being advised of his rights, that, "[m]aybe I should talk to a lawyer." The United States Supreme Court determined that the defendant's remark was not an unambiguous or unequivocal request for counsel that required to officers to stop questioning the defendant. Additionally, in State v. Chesson, 03-606 (La. App. 3 Cir, 10/1/03), 856

So.2d 166, 173-175, writ denied, 03-2913 (La. 2/13/04), 867 So.2d 686, the Third
Circuit upheld the trial court's denial of the defendant's motion to suppress his statement despite his statement to police officers while being transported that "he might -- he felt like he should talk to an attorney." The Third Circuit concluded that "[t]he defendant's statement regarding his 'thinking' that he possibly 'should' speak with an attorney is not the type of unequivocal and unambiguous statement described above [in Davis]."

also, State v. Payne, 01-3196 (La. 12/4/02), 833 So.2d 927, where the Louisiana Supreme Court found the defendant's statement of "may I call a lawyer - can I call a lawyer," was insufficient to invoke her right to counsel so as to require a suppression of her statement; State v. Cooper, 36,830 (La. App. 2 Cir. 3/5/03), 839 So.2d 995, 998-999, writ denied, 03-0999 (La. 10/10/03), 855 So.2d 330, where the Second Circuit concluded the trial court did not err in denying the defendant's motion to suppress his confession despite the fact the defendant's father had made a comment when the defendant was advised of his rights prior to questioning that they might want an attorney later; and, State v. Thomas, 30,490 (La. App. 2 Cir. 4/8/98), 71l So.2d 808, writ denied, 99-0331 (La. 7/2/99), 747 So.2d 8, where the Second Circuit determined the defendant's question of, "[b]ut do I - do I need a lawyer," upon being advised of his rights during questioning was not a request for an attorney. In Thomas, the court noted that the defendant's "vacillating references to counsel fail[ed] to meet the objective requirement pronounced in Davis." Id. at 8 12.

-8-

Similar to State v. Chesson, supra, the defendant in the present case twice stated he was "thinking" he "might" want an attorney. According to Detective Becnel, who the trial court found credible, the defendant never unequivocally stated he wanted an attorney. Under Davis, the defendant's statements that he thought he might want to speak to an attorney were ambiguous and cessation of questioning was not required. Thus, the trial court did not err in denying the defendant's motion to suppress his confession. This assignment of error is without merit.

PRO SE SUPPLEMENTAL BRIEF
On February 19, 2007, after this matter was submitted to this Court, defendant filed a pro se brief listing 28 assignments of error. Assignments of error numbers 8, 10, l 1, 14, 19, 20, 22, 23 and 25-28 of the supplemental brief relate to claims involving ineffective assistance of counsel. In these twelve assignments of error, defendant claims his trial attorney was ineffective for various reasons ranging from counsel's failure to ask certain questions of certain witnesses and his failure to present a defense to his failure to adequately investigate the case, pursue certain discovery, and timely pursue certain pre-trial motions. He also asserts his appellate counsel was ineffective for failing to raise the issue of coercion of his confession. A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I,

Download 193E2E63-4419-4423-A743-4E55F631997C.pdf

Louisiana Law