2016 KA 1284
J. Christopher Erny Ellen Daigle Doskey Assistant District Attorneys Houma, LA Counsel for Appellee, State of Louisiana Jim Holt Baton Rouge, LA Counsel for Defendant/Appellant, LaShawn Smith
NOT DESIGNATED FOR PUBLICATION Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne, State of Louisiana
Trial Court Number 587,665 Honorable Randall L. Bethancourt, Judge Presiding J. Christopher Erny
Ellen Daigle Doskey
Assistant District Attorneys
Houma, LA Counsel for Appellee,
State of Louisiana Jim Holt
Baton Rouge, LA Counsel for Defendant/Appellant,
LaShawn Smith BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
The defendant, LaShawn Smith, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. The defendant pled not guilty and, following a jury trial, was found guilty of the responsive offense of manslaughter. See LSA-R.S. 14:31. The State filed a habitual offender bill of information; following a hearing on the matter, the trial court adjudicated the defendant a fourth-felony habitual offender. The trial court sentenced the defendant to fifty years imprisonment at hard labor without benefit of probation or suspension of sentence. The State filed a motion to reconsider sentence, arguing that the trial court sentenced the defendant under the wrong section of the habitual offender statute. The State correctly noted in its motion that because of the defendant's instant and predicate convictions, the applicable law was LSA-R.S. 15:529.1(A)(4)(b), which carries a mandatory life sentence. The trial court granted the State's motion, vacated the previous fifty-year sentence, and resentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating three assignments of error. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
The defendant has prior convictions for possession with intent to distribute marijuana on two separate occasions, and second degree battery. --------
At the outset, we note that we do not have the full trial record before us (as discussed below). However, as presented on appeal, we glean from the appellate record, including the exhibits introduced at trial, that Quincy Smith, the victim, owed several thousand dollars to the defendant, or to someone else, for drugs Quincy had purchased. On January 7, 2011, the defendant, Quincy's cousin, drove Quincy to a wooded area in Smithridge, near Chauvin, in Terrebonne Parish. Either the defendant or someone else shot Quincy in the forehead, killing him. When interviewed by a detective with the Terrebonne Parish Sheriff's Office on the day of the shooting, the defendant said that he was alone with Quincy and that he shot Quincy. The physical evidence indicated that Quincy's body was moved from where he was shot to the back of someone's house on Anacin Street.
About two weeks later, when the defendant was interviewed by Michael Garner, a different detective with the Terrebonne Parish Sheriff's Office, the defendant said that he drove Quincy to Smithridge where some people were waiting for him. According to the defendant, "Rodney" told Quincy that "Darnell" wanted the $9,000.00 that Quincy owed Darnell. When Quincy said he did not have the money, someone named "Cory" gave a gun to the defendant and told him to shoot Quincy. In one version of the defendant's story, when the defendant said he could not shoot Quincy, Cory grabbed the gun from the defendant and shot Quincy. In another version, Cory produced a second gun and shot Quincy. In yet another version of what took place, the defendant told Detective Garner that he was alone with Quincy, and that he shot Quincy, then threw the gun, a revolver, into the Intracoastal Waterway.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the trial court erred in denying his motion for new trial in light of the evidence proving he "did not commit the homicide." Specifically, the defendant contends the State violated Brady in not disclosing its theory of the case, i.e., that other people may have been involved in the killing of Quincy.
Detective Garner testified at trial that he thought several people were involved in the murder of Quincy because Quincy was carried from the place he was shot to the area in the woods where he was found. Although Detective Garner could not state with certainty if the defendant was the actual shooter, he concluded that the defendant was involved. Citing this testimony, the defendant filed a motion for new trial, arguing that the testimony evidenced an "alternate theory" and that he was not aware of this "alternate theory" of how Quincy was killed. According to the defendant, the State's theory of the case was that the defendant acted alone, and, thus, the State's failure to inform him of the theory that others may have been involved in the murder of Quincy was a Brady violation. The defendant states in his brief:
[I]t is clear that the State had a duty to reveal said alternative suspect theory information to Smith, pertaining [to] the plan by another to kill the victim due to a drug debt, and the State's failure to do so clearly affected Smith's ability to mount a full and viable alternative suspect defense that would have probably resulted in a different finding by the Jury, as to Smith's Defendant's innocence, at trial, and thus a new trial is the only remedy to this dilemma.
2. Motion for Reconsideration of Sentence
The argument, pertaining to the State having a duty to reveal said alternative suspect theory information and said exculpatory information to Smith prior to trial and the failure of the State to do the same, was briefed above in Smith's argument for a new trial and thus is hereby incorporated herein by reference as though copied fully herein in extenso.
It is well settled that the State has an affirmative duty to disclose exculpatory evidence favorable to the defendant. Brady v. Maryland, 373 U.S. 83, 86-87, 83 S. Ct. 1194, 1196-1197, 10 L. Ed. 2d 215 (1963). But in order to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was, in fact, exculpatory or impeaching. State v. Garrick, 2003-0137 (La. 4/14/04), 870 So. 2d 990, 993 (per curiam). Disclosure of exculpatory evidence should be made in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Prudholm, 446 So. 2d 729, 738 (La. 1984). However, even where disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. See State v. Huls, 95-0541 (La. App. 1st Cir. 5/29/96), 676 So. 2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So. 2d 126. In order to be entitled to a reversal for failure to timely provide exculpatory information, the defendant must show that he was prejudiced. Discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant. Garrick, 870 So. 2d at 993.
A discovery violation involving the State's failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. Garrick, 870 So. 2d at 993. While late disclosure, as well as nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense "must be evaluated in the context of the entire record." State v. Kemp, 2000-2228 (La. 10/15/02), 828 So. 2d 540, 545 (per curiam).
We again note that the appellate record contains very little of the trial transcript. In his motion for appeal and designation of record, defense counsel initially asked for a complete trial record, including voir dire and all posttrial motions. However, about two weeks later, defense counsel filed an amended appeal, seeking to designate only the following portions of the trial record:
ONLY the part(s) of the Trial Record regarding the testimony and/or cross-examination of Officer Michael Garner; and
All Post Trial Motions.
The Order of the amended appeal was signed by the trial court on July 26, 2016. Accordingly, we have for our review the trial testimony of a single witness.
Even assuming the defense was correct in its assertion that the State's theory of the case was that of a lone gunman (which it was not, as addressed below), it is not clear to us how a "theory" constituted evidence, material or otherwise, that should have been turned over to the defense. The prosecution is permitted to have its own idea or theory of how the murder of Quincy came about without such theory constituting suppressed evidence. Moreover, it is apparent that the prosecutors and the defense were aware of the evidence that several people were involved with getting Quincy to the woods where he was shot and killed. Defense counsel, in fact, made the issue of others being involved the cornerstone of his cross-examination of Detective Garner. Throughout his cross-examination, defense counsel pressed Detective Garner on why the detective thought more than one person was involved in the murder of Quincy. For example, Detective Garner testified on cross-examination:
Q. Do you believe that there were other [gentlemen] in the cut or in the woods?Later, the following exchange took place:
Q. And why do you believe that?
A. Just because of the nature of the physical evidence. It appears that Mr. Quincy was carried and he was carried from two points on his body, which one person cannot do.
Q. And you were told that three gentlemen were in the cut--a gentleman by the name of Foret, a short black dude with a hoodie, and another gentleman named Rodney; is that correct?
A. That was--That was one of the accounts. Yes, sir.
Q. All right. Well, was there another account of who was present in the, in the cut?
A. Yes, sir.
Q. And what account was that?
A. There was one where the name Rodney was omitted; it was an unidentified gentleman. If you can refer to my report, there were a couple of scenarios that was given by Mr. Smith.
Q. But the scenario you were just given in that 91-page interview--
A. Yes, sir.
Q. --said that there [were] three gentlemen in the cut?
Q. Correct? Okay.
A. To include of course Mr. Quincy and Mr. LaShawn initially.
Q. And according to that scenario, on the other side of the cut, which would be the Harris side--
A. Yes, sir.
Q. --Darnell Brown was waiting in a green F-150?
A. That's the assumption. Yes, sir.
Q. And another dude was with him?
A. From what we understand from the account that was given.
Q. So you told us, you just told us, what you did believe about what LaShawn told you.
A. Yes, sir.
Q. What is it that you don't believe?
A. I don't believe it was a one-man operation.
A. The physical evidence contradicts that.
Based on the foregoing, it is clear defense counsel was aware that several people may have been involved in Quincy's murder. As such, the evidence alleged to be exculpatory was not material evidence withheld by the State and, therefore, not violative of any Brady requirement to disclose. There is no constitutional error when the evidence at issue is not material evidence. See State v. Marshall, 94-0461 (La. 9/5/95), 660 So. 2d 819, 825-27. Favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 685, 105 S. Ct. 3375, 3383, 3385, 87 L. Ed. 2d 481 (1985). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383. See State v. Smith, 95-1826 (La. App. 1st Cir. 9/27/96), 681 So. 2d 980, 992, writ denied, 96-2568 (La. 3/27/97), 692 So. 2d 390.
We find as well that not only was the defense aware during trial of "alternative" theories of how Quincy died, defense counsel clearly knew, even before trial started, about the possibility that several people may have been involved in Quincy's death. At the posttrial hearing on his motion for new trial, defense counsel argued that the State did not provide him with a crime scene "video" that showed Quincy lying in the field "neatly dressed." This video, along with Detective Garner's testimony, established what defense counsel referred to as "an alternative suspect theory." According to the defense, Quincy's neat appearance suggested that his body had been carried to that location by more than one person. The failure to turn over this information, according to defense counsel, was a "patent Brady violation." In asking for a new trial, defense counsel argued, "Instead of a lone gunman defense, we could have incorporated discovery to address this alternative suspect theory that the video along with Detective Garner's testimony developed at trial."
One of the prosecutors replied to defense counsel's argument as follows:
Your Honor, this is really bizarre. There has been no mention in the motion for new trial that was filed about a video, and in fact, what Counsel is referring to is not a video at all. It's actually photographs that were just put on a CD. It was the crime scene photographs that were taken by the investigators that were available in evidence that were clearly produced and was all in open file discovery. And this is the first time today just two minutes ago I heard for the very first time that he never had a copy of that.
I don't recall there being any objection at the time. And if I'm wrong on that, I'll, you know, defer to the minutes, but I don't recall there being any objection at the trial when those photographs were introduced. Maybe you might have an independent recollection, Judge. And if someone doesn't object at that time, then it's waived, okay. So I don't recall there being an objection as to that.
As far as withholding, that is ridiculous. It's absolutely ridiculous and patently false, and it's not my fault that he never saw those.
The Court: Do you recall if open file was, in fact, offered?
[The prosecutor]: Absolutely. And he filed, he filed about four inches of motions, just various discovery motions. You know, the packet filed in the court in this record is probably a foot-and-a-half thick because of all the motions he's filed.
And we went through all of that, and he was offered open file. And I produced--this was the trial, Your Honor, remember we had two and a half hours of a video statement, okay. Also, Mike Garner who was the investigator, one of the investigators, not the investigator for the murder, but had gone and questioned the defendant at the jail pursuant to the defendant's request for some drug-related issues went and talked to the defendant.
And we never had the theory that he was the lone gunman. I don't know where this is coming from. We always indicated there were other people involved. We had numerous plea discussions about, you know, possibly letting him plead to a lesser charge if he'd be willing to testify against the other people that were involved in this case.
There was a lot of testimony at the trial even on cross-examination from [defense counsel] from--to Officer Garner about who else was involved. Darnell Brown and his whole crew, they were all involved in this deal, and La[S]hawn was just basically involved in that. He brought his cousin to that cut to get murdered that night, executed. Whether he pulled the trigger or he was part and parcel, the jury found him responsible and gave him a verdict of manslaughter.
There was nothing that was withheld. I went out of my way to
provide [defense counsel] stuff that we normally don't do for a lot of attorneys because, one, he's out of town. And out of a matter of professional courtesy, I was giving him stuff; so he wouldn't actually have to come in and get stuff. And he was always offered open file discovery and could come and get whatever he wanted at any time he wanted.
If he didn't look at those autopsy photos or those crime scene photos, that's not my fault. That is not my fault, and I don't recall there being any objection about that. So as far as that's concerned, a Brady violation, I take offense to that. He's accusing me of an intentional Brady violation. That is completely false, and I take issue with that. In fact, I just filed a motion for sanctions against an attorney who accused me of that on another case. It's ridiculous, and I'm not going to put up with it.
Also, this lone gunman theory is nonsense. We've never had that. We've always indicated--he had numerous conversations with Mr. Garner right outside of this courtroom. We were trying to get him to go talk to La[S]hawn to see if he'd be willing to give up information about other people involved which he did do a lot in his two and a half hours of statements. He did indicate that there were other people involved, but he wouldn't come forward and say, "Yes, you know, I will testify against that person."
He refused to do that; so we had no choice but to go to trial with him, and the jury found him guilty of manslaughter.
At trial, an alternative theory regarding how Quincy was killed was established through cross-examination, along with other evidence submitted to the jury. Accordingly, the jury was exposed to this evidence and was free to consider it during deliberations. See State v. Woolridge, 555 So. 2d 1385, 1389 (La. App. 4th Cir. 1989), writ denied, 561 So. 2d 113 (La. 1990); State v. Dozier, 553 So. 2d 931, 932-33 (La. App. 4th Cir. 1989), writ denied, 558 So. 2d 567 (La. 1990); Williams, 483 So. 2d at 628. As demonstrated by the jury's verdict, finding the defendant guilty of the responsive offense of manslaughter, the jury was aware of the evidence that the defendant may not have been the person who actually shot Quincy and rendered its verdict accordingly.
Based on the foregoing, we find the defendant has failed to show that he was prejudiced in any way or that the proceedings were somehow rendered fundamentally unfair. See State v. Pitre, 2004-0545 (La. App. 1st Cir. 12/17/04), 901 So. 2d 428, 441-42, writ denied, 2005-0397 (La. 5/13/05), 902 So. 2d 1018. Even if such "evidence" of an "alternative suspect theory" had been disclosed to the defense, we are convinced that the result of the proceeding would not have been different. See Bagley, 473 U.S. at 682, 685, 105 S. Ct. at 3383, 3385. Accordingly, the trial court did not err in denying the defendant's motion for new trial.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues his life sentence is excessive. Specifically, the defendant contends that he is exceptional and that the trial court should have deviated from the statutory minimum sentence.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So. 2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So. 2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So. 2d 566, 569.
The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So. 2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So. 2d 49, 50 (per curiam).
The defendant asserts in brief that pursuant to Johnson, the trial court should have deviated from the mandatory minimum life sentence. According to the defendant, he is "exceptional and the circumstances of his case are unusual because he was not the person that killed the victim nor solely culpable for the death of the victim when one looks at the circumstances of the case in their totality."
In State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by LSA-R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," the judge has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences under the Habitual Offender Law.
A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So. 2d at 676.
To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Downward departures from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So. 2d at 676-77.
The defendant suggests in brief that the sentence is improper as he was not the person who killed Quincy. However, this assertion, as a fact, is unsupported by the record before us. While others were involved in setting up Quincy, and others may have been present at the scene when Quincy was shot and killed, we have no way of knowing what the evidence at trial established in terms of the identity of the shooter, given the trial record before us for review. In any event, the trial court provided written reasons for sentence when it sentenced the defendant to fifty years imprisonment after relying on the wrong habitual offender provision. These reasons are relevant because they clearly set out why the defendant is not entitled to a downward departure under Dorthey/Johnson:
Defendant, LaShawn Anthony Smith, was charged by grand jury indictment with second degree murder of his cousin, Quincy Smith, in violation of La. R.S. 14:30.1. He pled not guilty. He was represented at all times. After a trial by jury, he was found guilty of the responsive offense of manslaughter, in violation of La. R.S. 14:31. The jury deliberated for approximately 2 hours. Mr. Smith's post-trial motions were denied.
The state subsequently charged the defendant by bill of information as a fourth-felony offender under LSA-R.S. 15:529.1. Mr. Smith pled not guilty after being advised of his rights. The defendant did not timely move to quash or collaterally attack the habitual offender bill or his prior convictions as constitutionally infirm. La. R.S. 15:529.1D(1)(b).
On August 11th, 2015, Mr. Smith was adjudicated a 4th felony offender. The evidence supporting the adjudication includes two separate convictions in 2003 and 2007 for possession with intent to distribute marijuana, and a 2007 conviction for second degree battery. All three convictions were obtained via counseled guilty pleas. The defense presented no evidence to refute the existence of the predicate felony convictions or their constitutional validity or that LaShawn Anthony Smith was the person who pled guilty to the foregoing criminal offenses.
Former Probation and Parole Specialist Emile Lapeyere identified LaShawn Anthony Smith as the parolee/probationer he supervised for one, if not more, of his prior felony convictions. Officer Lapeyere based this identification upon his personal knowledge of the defendant, which included visits to his home and with his family. Probation and Parole Specialist Angela Hebert also testified. She identified the Department's certified records concerning Mr. Smith. These records confirm that the defendant reoffended while he was on parole and that the predicate offenses were not cleansed by operation of law. La. R.S. 15:529.1C. In connection with this evidence and testimony, the State introduced certified copies of the bills ... of information and sentencing minutes from the three prior felony convictions, which were all obtained by counseled [guilty] pleas. The defense presented no contradictory evidence.
The defendant waived sentencing delays, and the Court proceeded directly to sentencing. For manslaughter, the court sentenced Mr. Smith as a 4th habitual felony offender to serve fifty (50) years at hard labor without benefit of probation or suspension of sentence. His original sentence exposure was imprisonment at hard
labor for not more than 40 years. [See] La. R.S. 14:31. As a 4th felony habitual offender, the defendant faced a possible enhanced sentence range from 40 years to life imprisonment at hard labor. La. R.S. 15:529.1(A)(4)(a). His sentence of 50 years is clearly within the statutory penalty range the habitual offender law prescribes. It is far less than life imprisonment.(Footnotes omitted.)
In sentencing Mr. Smith, the court took into consideration his criminal history, his resistance to rehabilitation, and the particularly heinous nature of this offense. As his 27 year-old cousin Quincy knelt before him, LaShawn Smith shot him in the head assassination-style, over an alleged drug debt. Quincy Smith was reported missing December 31st. His decomposing body was found in the woods on January 7th. The defendant's family is the victim's family. While his own family mourned, LaShawn Smith did nothing to ease their pain. LaShawn Smith showed no outward signs of guilt or remorse during trial. He exhibited none during habitual offender proceedings.
Neither age nor imprisonment tempered LaShawn Smith's proclivity toward violence. His criminal history reveals his evolution from drug dealer to thug to remorseless killer. This crime (manslaughter) and second degree battery are crimes of violence. La. R.S. 14:2(B)(4), (6). He brutally killed his cousin despite having already been imprisoned for three prior felonies. He did so despite having twice avoided habitual offender sentencing. He committed his most recent violent crime (manslaughter) while he was on parole.
The purpose of the habitual offender law is to deter and punish recidivism. State v. Baker, 06-2175 (La. 10/16/07), 970 So.2d 948, cert . [denied] ., 555 U.S. 830 (2008). A more lenient sentence than 50 years without benefit of probation or suspension of sentence will not satisfy these goals. Mr. Smith has little regard for life, for societal norms, or for criminal laws that exist to protect life. The court is convinced that he will remain a threat to society unless he is removed from its midst for a long time.
There is nothing particularly unusual about the defendant's circumstances that would justify a downward departure from the life sentence imposed under LSA-R.S. 15:529.1. The defendant has not proven by clear and convincing evidence that he is exceptional such that a life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So. 2d at 676. The sentence is not unconstitutionally excessive.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in denying the motion to suppress his inculpatory statement. Specifically, the defendant contends the State failed to prove that his statement was free and voluntary or that he was Mirandized before giving his statement.
Before a confession (or inculpatory statement) can be introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. Confessions obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law. State v. Brown, 481 So. 2d 679, 684 (La. App. 1st Cir. 1985), writ denied, 486 So. 2d 747 (La. 1986). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. State v. Patterson, 572 So. 2d 1144, 1150 (La. App. 1st Cir. 1990), writ denied, 577 So. 2d 11 (La. 1991). However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So. 3d 746, 751. The trial court must consider the totality of the circumstances in determining whether or not a confession is admissible. State v. Hernandez, 432 So. 2d 350, 352 (La. App. 1st Cir. 1983). The direct testimony of the interviewing police officer can be sufficient to prove a defendant's statement was freely and voluntarily given. See State v. Sims, 310 So. 2d 587, 589-90 (La. 1975); State v. Washington, 540 So. 2d 502, 507-08 (La. App. 1st Cir. 1989).
Although the burden of proof is generally on the defendant to prove the grounds recited in a motion to suppress evidence, such is not the case with the motion to suppress a confession. In the latter situation, the burden of proof is with the State to prove the confession's admissibility. LSA-C.Cr.P. art. 703(D). The State must prove beyond a reasonable doubt that the confession was made freely and voluntarily. State v. Seward, 509 So. 2d 413, 417 (La. 1987). See State v. Smith, 409 So. 2d 271, 272 (La. 1982). Therefore, if the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically. State v. Welch, 448 So. 2d 705, 712 (La. App. 1st Cir.), writ denied, 450 So. 2d 952 (La. 1984).
The defendant asserts in brief that his videotaped confession does not reveal that he was advised of his Miranda rights prior to being interrogated. The defendant contends it is impossible to ascertain if the time that the officer wrote on the Miranda rights waiver form was the correct time that the rights were allegedly read to him. It is also impossible, according to the defendant, to ascertain whether his rights were provided to him before or after the recorded interview. The defendant first denied any involvement with the death of Quincy, but in the "second" interview, according to the defendant, he was coerced by law enforcement until he "falsely admitted" his involvement.
The defendant's assertions are baseless. When the defendant's motion to suppress his statement was denied, he filed an application for supervisory writs with this court, which was denied. See State v. Smith, 2014-0114 (La. App. 1st Cir. 4/4/14) (unpublished writ). At the motion to suppress hearing, Lieutenant Terry Daigre, with the Terrebonne Parish Sheriff's Office, testified that the defendant, after having been developed as a suspect, was contacted and asked to come to the sheriff's office for an interview. The defendant went to the office voluntarily and, after being informed he was a suspect, was questioned by Lieutenant Daigre and Detective Charles Clark. Lieutenant Daigre testified he informed the defendant that he was investigating a potential homicide; he then advised the defendant of his Miranda rights.
Lieutenant Daigre presented the Miranda rights form to the defendant. As he read each right to the defendant, the defendant initialed each of them. After he read aloud the rights, Lieutenant Daigre advised the defendant that his signature would indicate he understood his rights. The defendant then signed the form. Lieutenant Daigre and Detective Clark signed as witnesses. The bottom part of the same form provides the waiver of the Miranda rights. Lieutenant Daigre read this part of the form as well to the defendant and advised him that his signature underneath would indicate that he agreed to waive his rights and to speak to them without an attorney present. The defendant signed the form again, and the officers signed as witnesses. Lieutenant Daigre indicated the defendant was never coerced or threatened, or forced to say anything.
Lieutenant Daigre then indicated that after the defendant signed the rights and waiver form, they began to interview him. During these initial questions to the defendant, the interview was not recorded. Lieutenant Daigre testified that at some point during the questioning, the defendant commented that he had not been telling the truth and that he was ready to tell the truth. At this point, the interview was recorded, and the defendant was informed that the recording had begun. Accordingly, that portion of the interview, when the defendant first arrived and was informed of his Miranda rights, was not recorded.
The defendant also contends in brief that his arrest was illegal since he was never placed under arrest and was only arrested when he attempted to leave the interrogation room. This contention is baseless. While the defendant was not placed under arrest when he arrived for the interview, he was arrested after he ran from the interview room. Lieutenant Daigre explained at the motion to suppress hearing that after the interview, the lieutenant left the room to speak to some investigators. The defendant then fled the interview room and ran through the sheriff's office. He was chased and eventually apprehended and arrested. Lieutenant Daigre made clear that when he had left the interview room, he had already determined that he had probable cause to arrest the defendant for murder, and that he was preparing to effect the physical detainment of the defendant, or the detainer, to complete the arrest. The defendant, however, had run from the room at this point. When asked by defense counsel on recross-examination what part of the interview had established probable cause that the defendant was a "prime suspect for second degree murder," Lieutenant Daigre replied, "Mr. Smith confessing that he shot the victim."
Based on the foregoing, as well as our own viewing of the defendant's statement, we find the trial court did not err in denying the motion to suppress. The defendant has failed to reference any specific instances of inappropriate tactics or conduct by Lieutenant Daigre or Detective Clark. The record before us clearly establishes that the defendant was advised of his Miranda rights prior to making a confession; that at no time during his interview did the defendant ask for a lawyer or invoke his right to remain silent; and that the defendant's confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. The trial court's determination on credibility was supported by the record.
Accordingly, the trial court did not err or abuse its discretion in denying the defendant's motion to suppress his statement.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.