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STATE OF LOUISIANA                                                            *   NO. 2007-KA-1040
VERSUS                                                                        *
                                                                                  COURT OF APPEAL
ROY ANTHONY JOHNSON                                                           *
                                                                                  FOURTH CIRCUIT
                                                                              *
                                                                                  STATE OF LOUISIANA
                                                                              *
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 259-320, DIVISION “A”
Honorable Robert A. Buckley, Judge
CHIEF JUDGE JOAN BERNARD ARMSTRONG
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Max N. Tobias,
Jr. and Judge Pro Tempore Moon Landrieu)
JOHN F. ROWLEY, DISTRICT ATTORNEY
WALKER H. DRAKE, JR., ASSISTANT DISTRICT ATTORNEY
34TH JUDICIAL DISTRICT, PARISH OF ST. BERNARD
P. O. BOX 947
CHALMETTE, LA   70044-0947
COUNSEL FOR APPELLEE
LAURA PAVY
LOUISIANA APPELLATE PROJECT
P.O. BOX 750602
NEW ORELEANS, LA 70175-0602
COUNSEL FOR APPELLANT
THIS OPINION DISPOSITION WAS APPROVED BY JUDGE LANDRIEU
PRIOR TO THE EXPIRATION OF HIS ASSIGNMENT TO THIS COURT.
CONVICTION AND SENTENCE AFFIRMED




Roy Anthony Johnson  (“Johnson”) was charged by an indictment
issued by a St. Bernard Parish grand jury with second degree murder in
violation of La. R.S. 14:30.1.   The grand jury “returned a ‘true bill’” on
November 28, 2001.  The indictment was signed on November 29, 2001.
After  a  sanity  hearing  held  on  January  15,  2002,  the  trial  court
determined that Johnson was unable to adequately assist in his defense and
remanded him to the mental health facility in Jackson, Louisiana.    On
March 1, 2005, the trial court conducted a sanity hearing and determined
that Johnson had been rehabilitated and could proceed to trial.   Johnson
filed and the trial court rejected a second motion for a sanity hearing on
April 12, 2005.
On  November  7,  2006,  the  trial  court  allowed  Johnson  to  plead
insanity  again  and  ordered  defense  counsel  to  prepare  the  judgment.
However, Johnson’s counsel apparently chose not to request another sanity
hearing.
On January  24,  2007, the trial court denied Johnson’s Motion to
Quash the indictment and Motion to Suppress Confession.   On the same
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day, Johnson proceeded to trial by jury and found guilty as charged.   On
February  27,  2007,  the  trial  court  denied  a  Motion  for  New  Trial  and
sentenced Johnson to a mandatory life sentence.   Johnson then timely filed
the present appeal.
STATEMENT OF FACT
Trial testimony of Darrion Woods
At the time of trial, Darrion Woods was ten years old.   She identified
Johnson as the defendant in this case.  She knew him as “Buddy”.
On the evening in question Darrion was sleeping with her mother.
Her mother heard a noise and got up “to get something, so he came in the
house.”    Darrion’s mother did not make it to the bedroom door before
Johnson entered.   He was carrying a bucket of liquid, which he poured on
Darrion’s mother.   Johnson then lit Darrion’s mother on fire in front of her.
Darrion and her mother ran out of their bedroom and into their television
room, where the front door was.
Darrion caught fire too.   Johnson picked her up and took her outside.
Johnson then took Darrion to her aunt’s house.
Darrion hypothesized that Johnson burned her mother because they
argued.   The two had been involved in an argument the night before the
attack.   Johnson and Darrion’s mother were married, but Johnson had lived
away from the home for an undetermined time.   The argument had been
about Johnson’s desire to return home.
Darrion  suffered  burn  injuries  to  her  face  and  hands.    She  will
continue annual treatment at Shriner’s Hospital in Galveston, Texas until
she is twenty-one years old.
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On cross examination, Darrion testified that she gave a statement to
the police after the incident.   She recalled telling the police that Johnson
had lit the fire with a match.
Trial testimony of Dr. Paul McGarry
At the time of trial, Dr. Paul McGarry had been a forensic pathologist
with the Orleans Parish Coroner’s Office for over twenty-five years.   The
trial court accepted him as an expert in forensic pathology.
Dr.  McGarry  examined  the  remains  of  Agena  Woods  Johnson,
Darrion’s mother.   The body “was totally burned black from the top of her
head  to  the  soles  of  her  feet.”    Much  of  her  skin  had  been  burned
completely away, exposing the tissue beneath the skin.   The clothing had
been burned away.
Ms. Johnson’s muscles and joints had contracted, leaving her hands
in fists.    Her wrists were sharply bent, her elbows were bent, her arms were
in front of her, and her legs were flexed at the hips and knees.    Heavy black
soot was found around her nose and mouth from breathing in smoke.   Her
respiratory track  - from her nostrils to her lungs  - was burned and red.
This evidence indicated Ms. Johnson had been breathing in smoke, fire and
heat,  from  her  own  burning  body  tissue,  resulting  in  a  slow  death
transpiring over minutes.    Eventually, her skin was completely charred,
destroying the nerve endings.    Ms. Johnson managed to make it to her
bathtub.   However, Dr. McGarry hypothesized that Ms. Johnson would not
have had control over her burning hands due to contracting, preventing her
from turning on the water to douse the flames out.
Trial testimony of Deputy Fire Chief Raleigh Paul Richards
Raleigh Paul Richards was a Deputy Fire Chief in the St. Bernard
Parish Fire Department in 2001.   Deputy Chief Richards professed to be an
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expert in arson investigation.   He received training from Louisiana State
University and has investigated over one hundred arsons.
Deputy  Chief  Richards  investigated  the  fire  at  Agena  Johnson’s
home  in  Violet,  Louisiana.    At  trial,  Deputy  Chief  Richards  identified
pictures of the home. One picture depicted Ms. Johnson’s body in the
bathtub of her bathroom, after the fire had been extinguished.   The front
door to the home was found approximately one foot from where it should
be.   By examining bricks from the house, Deputy Richards determined that
there had been a large explosion fueled by a petrochemical accelerant.
Most of the damage to the house was in the master bedroom and the master
bathroom.   Deputy Chief Richards wrote a report.   This report did not state
what accelerant was used.
Trial testimony of Detective Ray Whitfield
At  the  time  of  trial,  Detective  Ray  Whitfield  was  a  detective
lieutenant with the Criminal Investigations Bureau of the St. Bernard Parish
Sheriff’s Office.   In 2001, he was a sergeant.   At that time, he interviewed
Johnson and viewed the crime scene.
The offense occurred on October  25,  2001.    Det. Whitfield took
Johnson’s statement on November 20, 2001.   In the interim, Johnson was
being treated at a Baton Rouge hospital burn center.
Johnson gave Det. Whitfield a written statement.    Det. Whitfield
advised Johnson of his rights prior to taking the statement.   Johnson also
signed a waiver of rights form.   Johnson expressed that he had gone to
school  through  the  twelfth  grade  and  that  he  understood  his  rights.
Concerned  about  bandages  on  his  hands and  head,  Det.  Whitfield  also
inquired about Johnson’s condition.    Johnson said he was willing to go
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forward  with  providing  a  statement.     Johnson  did  not  appear  to  be
medicated and did not slur his speech.
In his statement, Johnson related that his wife, Agena Johnson, and
he were having some problems and that he left their home.   The couple had
been married for less than a year.   They had attempted reconciliation but
Agena would not “have [him] back” and threw him out of their home some
two weeks prior to the incident.   Johnson stated that he did not know what
he was doing.   He went to the house, removed a gallon of gasoline from the
rear of the yard, filled an open five gallon bucket, entered the house with
the bucket, and confronted his wife.   When he entered the house, Johnson
put the bucket down in the hallway.   The bedroom door was open, and he
could see Agena walk from the bed to the door.   Johnson did not recall what
was said.   He then picked the bucket up and poured the gasoline “all over”
and on her.   Johnson turned away and heard a “poof”.   Johnson did not
recall using a match.   Rather, he assumed Agena “may have some candles
lit in the bedroom that may have ignited the fire.”   Johnson turned back to
see the bedroom on fire, and the fire was coming through the hallway.
Johnson  heard  Darrion  cry,  “Buddy,  Buddy!”    He  was  on  fire  but  he
returned to get Darrion and took her out of the house.   Johnson “started to
put out her hair” and took her to her uncle’s house in his truck.   Johnson
signed his statement and initialed each page.   When asked if he wanted to
add anything, Johnson noted, “I wasn’t thinking right at the time.”   The
waiver of rights form and the statement were introduced into the record at
trial.
The fire department subsequently found Agena Johnson’s body in the
bathtub  after  the  fire  had  been  extinguished.     Darrion  Johnson  was
subsequently found at her uncle’s house.  She was badly burned.
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On cross examination, Det. Whitfield stated that he was present when
Johnson  gave  his  statement.    Johnson  was  in  the  hospital,  receiving
treatment for burns he had received in the October 25, 2001 fire.   When
Det.  Whitfield  saw  Johnson,  he  had  bandages  on  his  hands  and  head.
Several  neighbors  exited  their  homes  following  the  explosion  and  saw
someone fitting Johnson’s description pacing back and forth by the house
and looking in the windows.
Motions hearing testimony of Detective Ray Whitfield
As  part  of  his  investigation,  Det.  Whitfield  interviewed  Johnson.
Immediately after the incident on October  25,  2001, Johnson had been
taken to the Earl K. Long Burn Center in Baton Rouge for treatment.   Upon
his release, Johnson was taken into custody by the Baton Rouge Police
Department.   Det. Whitfield and another officer retrieved Johnson from the
Baton Rouge Police Department.   Det. Whitfield did not recall being given
any medication for Johnson.   However, Johnson responded affirmatively
when asked if he was taking any medication.   In spite of that fact, he was
able to walk on his own and did not complain of any pain.   Johnson had
gauze  on  his  head,  hands,  and  fingers.    However,  he  had  no  problem
holding a pen and signing his name without assistance.
A rights form was read to Johnson and he signed it.    During the
statement,  Johnson  never  requested  a  break.    He  never  requested  any
medication or complained of any pain.
ERRORS PATENT
Johnson asks for an errors patent review.
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This  case  was  the  first  murder  trial  in  St.  Bernard  Parish  post
Hurricane Katrina.   Accordingly, the record is not in pristine condition. The
grand jury foreperson’s signature is not present in the record because the
indictment in the record does not include the back of the form.   La. C.Cr.P.
art.                                                                                533(5)  requires  that  the  foreman  of  the  grand  jury  sign  the  form.
However, a November 28, 2001 hand written minute entry notes, “Grand
Jury  returned  a                                                                   ‘True  Bill’  this  date  for                                                  ‘Second  Degree  Murder.’”
Furthermore, at the motions hearing, the trial court noted that the “Bill of
Indictment”  was  in  the  record,  and  defense  counsel  stipulated  that  the
document  in  the  record  was  an  indictment.    At  the  same  proceeding,
defense  counsel  filed  a  Motion  to  Quash  based  upon  a  speedy  trial
argument.    In doing so, defense counsel  noted, in part,  “a true bill of
indictment that came down, ..., was signed on November 29, 2001.”   This
Motion to Quash did not attack the indictment itself.
In State v. Poche, 2000-1391 (La. 4 Cir. 2/14/01), 780 So.2d 1152,
this Court addressed a situation similar to that of the instant case.   There, as
in the present case, the back of the indictment was not found in the record.
This Court held that any defect in the indictment had been waived by the
defendant’s failure to file a timely Motion to Quash. Id., p. 5, 780 So.2d at
1155, citing La. C.Cr.P. art. 521 and 535.   Here, Johnson did not file any
motion to quash challenging the validity of the indictment, namely whether
the jury foreman signed it. See La. C.Cr.P. art. 533(5). Thus, assuming there
was a defect in the indictment, it was waived by the defendant's failure to
timely object.
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DEFENDANT’S ASSIGNMENT OF ERROR
Johnson contends that the trial court erred when it denied his motion
to  suppress  his  statement  for  two  reasons:                                1)  That  his  statement  was
inadmissible because he had been arrested without probable cause when he
gave it, and 2) that the State failed to show he knowingly and intelligently
waived his rights.
I.  Probable Cause
In response to Johnson’s contention that he was arrested without
probable cause, the State asserts that Johnson failed to preserve his arrest
without probable cause argument for appeal, citing La. C.Cr.P. art. 703 (F).
La. C.Cr.P. art. 703(F) states in pertinent part that, “[f]ailure to file a
motion to suppress evidence in accordance with this Article prevents the
defendant from objecting to its admissibility at the trial on the merits on a
ground assertable by a motion to suppress.”   Furthermore, “[a]n irregularity
or error cannot be availed of after verdict unless it was objected to at the
time  of  the  occurrence.”  La.  C.Cr.P.  art.                                 841(A).    Accordingly,  and  a
fortiori, failure to raise a ground for suppressing an item of evidence in a
properly filed motion to suppress waives such a basis for exclusion on
appeal.   A defendant cannot object to admission of a statement to an officer
based upon lack of probable cause to arrest for the first time on appeal.
State v. Lindsey, 404 So.2d 466, 473 (La. 1981), citing State v. Duncan,
390 So.2d  859  (La.  1980), and State v. Williams,  386 So.2d  1342  (La.
1980).   See also, State v. McLeod, 03-50 (La. App. 3 Cir. 4/30/03), 843
So.2d 1268.
Accordingly, Johnson has waived the argument that his statement to
Det. Whitfield should be suppressed because there was no probable cause
for his initial arrest.
8




Even had this claim been preserved, it has no merit, as we find for the
following reasons that probable cause existed for the arrest.
In  Wong  Sun  v.  U.  S.,  371  U.S.  471,  83  S.Ct.  407  (1963),  the
Supreme  Court  rejected  a  hard  and  fast  approach  to  the  “fruit  of  the
poisonous tree” exclusionary rule:
We need not hold that all evidence is ‘fruit of the
poisonous tree’ simply because it would not have
come  to  light  but  for  the  illegal  actions  of  the
police. Rather, the more apt question in such a case
is ‘whether, granting establishment of the primary
illegality, the evidence to which instant objection
is made has been come at by exploitation of that
illegality   or   instead   by   means   sufficiently
distinguishable  to  be  purged  of  the  primary
taint.’Maguire, Evidence of Guilt, 221 (1959).
Id.,                                                                                     371  U.S.  at   487-488,   83  S.Ct.  at   417.   Accordingly,  the  Court
determined  that  the  confession  of  a  defendant  who  had  been  arrested
without probable cause but had voluntarily returned to the police after being
released was admissible at trial. Id. at  491,  83 S.Ct. at  419.   The Court
reasoned that,  “the connection between the arrest and the statement had
‘become so attenuated as to dissipate the taint.’” Id., citing Nardone v. U.
S., 308 U.S. 338, 341, 60 S.Ct. 266 (1939).
In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254 (1975), the Court
revisited Wong Sun to determine whether advising an illegally arrested
person of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602 (1966), “sufficiently attenuated the taint of the arrest.” Brown, 422
U.S. at 592, 95 S.Ct. at 2256.   The Court concluded that Miranda warnings
on  their  own  are  insufficient  to  attenuate  the  taint  of  an  illegal  arrest.
Brown 422 U.S. at 603, 95 S.Ct. at 2261.   Rather, the Court held, “The
Miranda  warnings  are  an  important  factor,  to  be  sure,  in  determining
whether the confession is obtained by exploitation of an illegal arrest.” Id.
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In any event, this Court need not address whether his confession was
a proximate result of an illegal arrest because the record shows that he was
arrested based upon probable cause.
The record contains no copy of an arrest warrant.   Accordingly, it is
not known if Johnson was arrested pursuant to an arrest warrant.   Had this
issue been properly preserved for appeal by being raised before the trial
court  during  the  motion  to  suppress  hearing,  the  record  might  indicate
whether a warrant was ever issued.   While there is some evidence in the
record that implies that a warrant was issued, as it is not conclusive we shall
afford the defendant every benefit of the doubt and assume that none was
issued.
La. C.Cr.P. art. 213 concerning warrantless arrests provides in
pertinent part that:
“A peace officer may, without a warrant arrest a
person when:
*                                                                                  *   *   *
(2) The person to be arrested has committed a felony,
although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe
that  the  person  arrested  has  committed  an  offense,
although not in the presence of the officer; or
*                                                                                  *   *   *
La. C.Cr.P. art. 202 concerning the issuance of warrants provides in
pertinent part that a magistrate may issue a warrant for arrest where:
A. ***
(1) ***
(2)   The magistrate has probable cause to believe
that an offense was committed and that the
person against whom the complaint was made
committed it.
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Whether  a  person  is  arrested  without  a  warrant  or  pursuant  to  a
warrant,  both  La.  C.Cr.P.  arts.                                                 213  and                                                  202  require   “reasonable”  or
“probable”  cause  for  an  arrest.    This  Court  has  noted  that,  “Louisiana
jurisprudence  treats                                                               ‘reasonable  cause’  as  consonant  with  the  probable
cause concept and does not create a different standard. State v. Marks, 337
So.2d 1177, 1182 (La.1976).”   State v. Marley, 2006-0317, p. 6, n. 4 (La. 4
Cir. 11/8/06), 945 So.2d 808, 812.  Accordingly, this Court has also written:
Probable cause to arrest exists when the detaining
officer  has  articulable  knowledge  of  particular
facts sufficient to reasonably suspect the detained
person of criminal activity. Beck v. Ohio, 379 U.S.
89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State
v. Buckley, 426 So.2d 103, 107 (La.1983); see also
State v. Parker,  06-0053, p.  2  (La.6/16/06),  931
So.2d  353,  355  (probable  cause  to  arrest  exists
when the facts and circumstances known to the
officer, and of which he has reasonable trustworthy
information,  are  sufficient  to  justify  a  man  or
ordinary  caution  in  believing  the  person  to  be
arrested  has  committed  an  offense).                                             .“The
totality of the circumstances, ‘the whole picture,’
must   be   considered   in   determining   whether
reasonable  cause  exists.”  State  v.  Belton,                                     441
So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S.
953,                                                                                104  S.Ct.                                                2158,          80  L.Ed.2d        543   (1984)
(quoting U.S. v. Cortez, 449 U.S. 411, 101 S.Ct.
690, 66 L.Ed.2d 621 (1981)).
Id. at pp. 5 and 6, 945 So.2d at 812.
The  record  contains  testimony  from  Darrion  Woods  who  saw
Johnson enter the bedroom where her mother and she were sleeping, splash
her  mother  with  a  liquid,  and  light  her  mother  on  fire.    On  cross-
examination, Darrion recalled telling the police that Johnson had lit the fire
with a match.   This testimony provides sufficient information to lead an
officer to reasonably believe that Johnson had doused Agena Johnson with
a flammable liquid and lit her on fire, providing probable cause his arrest.
Accordingly, though Johnson failed to preserve the issue of probable cause
11




for  his  arrest  for  appellate  review,  the  record  shows  that  the  police
possessed  probable  cause  for  his  arrest  before  he  was  placed  in  Det.
Whitfield’s custody.
II.  Intelligent Waiver of Rights
Johnson argues that the State did not establish that he knowingly and
intelligently waived his rights pursuant to Miranda v. Arizona,  384 U.S.
436, 86 S.Ct. 1602 (1966), prior to making his statement to Det. Whitfield.
He argues that he was in a mentally diminished state at the time, vitiating
his waiver of his rights.   The State responds by arguing that Johnson “had
ample time to consider his predicament and to seek legal advice before
making  a  statement.”    The  State  also  avers  that  Johnson                   “offered  no
testimony to indicate that he was under medication at the time he gave his
statement.”  Neither of these arguments is compelling.
This Court has addressed an allegation of diminished capacity to
waive one’s rights pursuant to Miranda by stating the following:
In  cases  involving  allegations  of  diminished
mental capacity, a defendant has the burden of
proving the existence of any mental abnormality
that   might   render   his   confession   per   se
involuntary. State v. Green, 94-0887 (La.5/22/95),
655  So.2d                                                                         272,           279.  However,  although  the
defendant  bears  the  burden  of  proving  the
existence of any mental abnormality which might
render his confession per se involuntary, in the
absence of such a showing the State retains the
ultimate burden of proving beyond a reasonable
doubt  that  the  confession  was  voluntary  and
obtained  pursuant  to  a  knowing  and  intelligent
waiver  of  the  defendant's  constitutional  rights.
State v. Brooks, 92-3331, p. 12, (La.1/17/95), 648
So.2d 366, 373 (Brooks 2), citing State v. Glover,
343 So.2d 118 (La.1977) (on rehearing).
State v. Raiford, 2003-0098, p. 16 (La. 4 Cir. App. 4/23/03), 846 So.2d 913,
922.   Furthermore, voluntariness of a confession is a factual issue. State v.
Thornton, 351 So.2d 480, 484 (La. 1977).   The trial judge’s ruling thereon,
12




based on conclusions of credibility and weight of the evidence, is entitled to
great  deference  and  will  not  be  disturbed  on  appeal  unless  clearly
unsupported by the evidence in the record. Id.
The only evidence in the record concerning Johnson’s confession is
Det. Whitfield’s testimony in the pre-trial motion hearing and at trial.   At
the  motions  hearing,  Det.  Whitfield  testified  that  Johnson  responded
affirmatively when asked if he was taking any medication.   Moreover, Det.
Whitfield testified that Johnson had gauze on his hands and fingers when he
picked Johnson up in Baton Rouge.   Johnson had been treated at a Baton
Rouge hospital burn center for injuries.
However,  nothing  in  Johnson’s  demeanor  indicated  a  diminished
capacity to intelligently waive his rights.   Det. Whitfield testified at the
motions hearing that Johnson was able to walk on his own and did not
complain of any pain.   Det. Whitfield also noted that Johnson showed no
problems with holding a pen or signing his name.
At trial, Det. Whitfield acknowledged initial concern about Johnson’s
physical condition.   However, Johnson expressed willingness to provide a
statement when asked about his condition.   Johnson did not manifest signs
of medication or slurred speech when providing his statement.   Finally, Det.
Whitfield testified that he advised Johnson of his rights and that Johnson
signed a waiver of those rights.   Under these circumstances, it appears that
the trial court’s finding that Johnson’s statement was admissible at trial
meets the standard prescribed by Thornton, supra, i.e., it is not clearly
unsupported by the evidence in the record.    Though Johnson had been
treated for serious burn injuries and received medication, the record does
not controvert the trial court’s implicit finding that Johnson was not so
incapacitated by his injuries and subsequent treatment at the time he met
13




with Det. Whitfield that he was unable to knowingly and intelligently waive
his Miranda rights and provide a statement.
For the foregoing reason, the defendant’s conviction and sentence are
affirmed.
CONVICTION AND SENTENCE AFFIRMED
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