State Of Louisiana VS Elijah Hawthorne
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 KA 1367 STATE OF LOUISIANA VERSUS ELIJAH HAWTHORNE Judgment rendered December 23 2009 Appealed from the 21st Judicial District Court in and for the Parish of Tangipahoa Louisiana Trial Court No 601117 Honorable W nlhJ v HON SCOTT M Ray Chutz Judge t PERRILLOUX ATTORNEYS FOR STATE OF LOUISIANA DISTRICT ATTORNEY DON WALL PATRICIA PARKER ASSISTANT DISTRICT ATTORNEYS AMITE LA PRENTICE L WHITE ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT EWAH HAWTHORNE BEFORE CARTER C l GUIDRY AND PETTIGREW ll PETTIGREW l The defendant Elijah Hawthorne murder of Samuel Galaforo Sr See RS La evidence obtained in appeal the 584 La who at the time of his death a search of his residence and the defendant entered court s ruling on a Crosby plea of guilty In return the State waived its 1976 in accordance with the assignments of was eighty five years old error incriminating statements made the motion to suppress court sentenced the defendant to life parole charged by indictment with the first degree After the trial court denied the defendant s motion to suppress 14 30 fellow inmate was right See State to a reserving his right to v Crosby 338 So 2d to seek the death The trial penalty imprisonment at hard labor without the benefit of plea agreement The defendant appeals designating three We affirm the conviction and sentence FACTS While investigating Galaforo s murder determined the defendant to be stabbed a Parish Sheriffs Office at least three of which penetrated his heart When regarding his relationship with Galaforo and his whereabouts at the time of the murder the defendant his death Tangipahoa While in his kitchen Galaforo had been likely suspect approximately eight times interviewed the explained that he had been at Galaforo The record does not detail the reasons s house the day before given for the visit During his interview with the defendant Detective Gary Baham suggested to the defendant that he submit to he initially agreed a psychological discussing it with his wife he should take the test the defendant was as their Detective Stuart suggested his mind and stated he would not do and the officers continued to investigate bond for an unauthorized Murphy spoke with the surety on the defendant We note that the victim is referred to as both so prime suspect During this investigation the defendant 1 form of lie detection and When she in front of officers changed returned to his home ultimately identifying the defendant movable arrest a However he later stated that he did not want to submit to the Iie detection test before The defendant stress evaluator was on Galaforo and Galafora 2 throughout the record use s of a bond Mike Launey and Detective Murphy explained that the defendant degree murder investigation defendant s bond defendant s status Detective Murphy that he the defendant was indicating he would much to as a too was as As murder a no taken into no to continue high wished to custody longer act acting suspect would longer as his as him to flee cause cover the defendant a the defendant the misdemeanor unauthorized use of at a s s bond In response Bondsman Off Bond Form surety although it may have been 500 00 which She the was was as returned original amount set for moveable arrest Detective Baham asked the defendant search the house first Launey notified couple of hours after officers took the defendant to jail After he jail the defendant s bond remained a Fearing that the surety Launey did fill out 2 suspect in Launey determined that the risk of covering the result a was a agreed and signed s wife a Rosa Lee Hawthorne for consent to form indicating her voluntary consent During the search the officers found shoestrings soaking in bleach and tennis shoes without strings in them They seized the defendant s bicycle and found what appeared to be blood on the handlebar defendant had stolen of a They also found drug paraphernalia and evidence that the television The defendant drug paraphernalia and felony theft suspected scientific were relevant to the murder jail after his arrest for the defendant shared 3 result of the search investigation were Items that the officers collected to be sent for a possession of drug paraphernalia and felony theft cell with Marvin Patrick and made incriminating statements to Although Patrick had cooperated with law enforcement in the past he intentionally placed in a led to the defendant arrest for Galaforo 2 placed under arrest for possession analysis While in him as a was s cell with the defendant s The information was not gathered from Patrick murder After the trial court denied his motion Detective Baham On the contrary the wrongly testified that the defendant s bond had been revoked was no longer willing to satisfy the bond on the defendant s behalf surety 3 The record does not reveal exactly what the defendant told Patrick However during the preliminary examination hearing Detective Baham testified that the defendant told Patrick that Galaforo had been stabbed six or eight times numbers that were consistent with the wounds and that had not been revealed to the public and also that he placed his shoestrings in bleach to dissolve the blood on them When asked bond was still valid but the whether the defendant admitted to the murder of Samuel Galafora testified that he did so admit to Patrick 3 Sr to anyone Detective Baham to suppress the evidence seized at his house and the statements made to Patrick the defendant pled guilty to Galaforo s murder in return for the State waiving the death penalty DETENTION OF DEFENDANT UPON SURRENDER BY SURETY In his first assignment of error surrendered defendant proper the defendant However the defendant behalf s alleges that the police unlawfully having his bond revoked without the necessary court remanded him into custody after intervention the defendant as he s bond was no was not revoked Rather the surety longer willing to satisfy the bond Louisiana Code of Criminal Procedure article 345 A on the provides the procedures for the surrender of the defendant A surety may surrender the defendant the defendant may to the officer charged with his detention or surrender himself in open court or at any time prior to forfeiture or within the time allowed aside by law for setting judgment of forfeiture of the bail bond For the purpose of surrendering the defendant the surety may arrest him Upon surrender of the defendant the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety Thereafter the surety shall be fully and finally discharged and relieved of any and all obligation under the bond Emphasis added a By the unambiguous language of Article 345 a surety may surrender the defendant any time and upon surrender the officer shall detain the defendant in his an officer charged with the detention of a surety s lawful surrender of that defendant 10 17 97 The have been defendant has no State custody Thus discretion to refuse to v accept Kerrison 97 1759 La 701 So 2d 1347 1348 surety in this case initially notified the Tangipahoa Parish Sheriffs Office of his surrender of the defendant via Bond Form a at indicating he would as much as a telephone conversation no longer He filled out a act as the defendant s couple of hours after the defendant 4 Bondsman Off surety although it may was taken into custody paperwork before that the defendant was was completed 4 Detective Murphy explained surrendered because he immediately in was that in this instance our presence when the surety indicated his desire to surrender the defendant and that he acted in good faith by detaining the defendant prior getting the to Murphy felt that he would have been Detective merely because he wasn a Off Bond Form little derelict in hand 5 in his duties if he had custody after the bondsman requested to be off the refused to take the defendant into bond Bondsman t physically there at that moment to produce a document Article 345 requires no particular action the defendant other than the surrender occur charged with the defendant s detention officer any forfeiture of the defendant surrender to the officer s bond no either in open court It can occur The defendant was then in part of the surety or at any time s surrendering be made to the including prior to surety chose to make the one employed by the required to take custody of him The authority established under Article 345 in taking the defendant into custody because the defendant State had the e charged with the defendant s detention i Tangipahoa Parish Sheriff s Office who State acted within the on was surrendered into their discretion to refuse and the defendant was custody by thus the properly surety 6 The remanded into Kerrison 701 So 2d at 1348 custody This assignment of error lacks merit CONSENT TO SEARCH In his second assignment of by his wife to search their residence 4 error was the defendant contends that the consent obtained unlawfully He does not given deny that she Detective Murphy explained during the hearing on the suppression motion that the Bondsman Off Bond a nytime a bondsman wants to get off of a bond The usual course of action is that once the form is completed a code is placed in criminal records to indicate that the person should be booked back into the jail with their original bond amount That person can be brought in by an agent of the bondsman or by a police officer S Detective Murphy also stated We were looking at him when the bondsman and Ispoke 6 Former La Code Crim P art 338 which was replaced by the current Article 345 contained additional provisions with regard to a surety who surrenders a defendant who has not failed to appear or otherwise violated any order of the court In that case the surety had to refund to the defendant the total amount paid by the defendant to the surety for the bail bond See former Article 338 D repealed by 1993 La Acts Form No is used 834 Procedure 1 no when Article 338 became Article 345 longer governs bond disputes 5 effective June 22 1993 The Code of Criminal consented to the search his wife were Rather he argues without citation to the record that he and at odds with his police ignored granting the police a search of their residence However this court finds objections no evidence in the record to support the assertion that the defendant objected to the search silent as to whether the defendant concurred in the consent Citing United States 1974 the defendant mutually controlled without area find to a given by his wife 39 L Ed 2d 242 individual may permit gaining the other person the record is s consent a He contends that the search We the State bears the burden of proof was absent search of a during support this assertion Code Crim P art Pursuant to La when one Rather 164 94 S Ct 988 show that the defendant however authority that acknowledges the State must no Matlock 415 U S v and that the defendant files a 703 D motion to suppress evidence obtained without On the trial of a warrant motion to suppress filed under the provisions of this proof is on the defendant to prove the ground of his a Article the burden of motion except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without warrant a Therefore the State bears the burden of showing that A search conducted with consent is justified probable cause denied 435 State requirements v writ denied 604 So 2d 970 motion to suppress in determinations while considered the not La applying 9 3 04 In Matlock State determining the correctness of Francise 597 So 2d 28 30 v 1992 La a We de La 1977 cert ruling on a 1978 n 2 a La App 1 Cir give great weight to the trial court s ruling regard to factual determinations 2003 1806 p 9 2004 0317 La given 352 So 2d 629 633 s U 945 98 S Ct 1529 55 L Ed 2d 543 pretrial motion to suppress Peterson exception to both the warrant and the Tennant The entire record is reviewable for a an warrantless search and seizure is a review to novo App 1 Cir 12 31 03 as well as on credibility and weight findings of law See State v 868 So 2d 786 792 writ denied 882 So 2d 606 415 validity of s U at 166 a 94 S Ct at 990 the United States warrantless search of by the defendant but by a co a home when consent to search occupant of the home 6 Supreme Court The defendant was was arrested in his front woman it yard and taken 177 94 S Ct at 991 110 S Ct 2793 179 2797 defendant relies the defendant to search cases waiting police The officers then asked the car who lived in the home with the defendant for consent to search Matlock 415 U S at 166 U S to a was obtained and he that the co tenants consent s U at 183 189 Rodriguez 497 111 L Ed 2d 148 1990 inside the residence but was not was Similarly in Illinois given a chance to valid and that the was v and she Rodriguez 497 a case asleep granted upon which the at the time consent object The Court held in both subsequent search 110 S Ct at 2799 2802 Matlock 415 was lawful s U at 169 178 94 S Ct at 992 996 More L Ed 2d 208 recently in Georgia 2006 the occupant determined that tenant co one co Georgia tenant Randolph n I fa objects the co potential tenant s 103 s 126 S Ct a co 1515 desire to consent cannot 547 U S at 114 prevail 126 S Ct at 1523 164 occupant s consent present and objected to the search was line between the decisions of Matlock and stating 547 U S Supreme Court considered the validity of to search when another objecting v over a The Court present and The Court drew a fine Rodriguez and the holding in Randolph defendant with self interest in objecting is in fact at the door and permission does not suffice for a reasonable search whereas the potential objector nearby but not invited to take part in the threshold colloquy loses out Georgia 547 Here s U at 121 there is 126 S Ct at 1527 some evidence that the defendant may have been consent to search was obtained from his wife actually spoke to his wife she consented left we Regardless there is no was to the search placed in custody before evidence that he A very similar situation appeal State v Collins law enforcement officers were Detective we present when Murphy testified that did our thing n was 44 248 were ever objected after consent or w e and before transported the defendant to the Tangipahoa Parish Sheriffs Office the jail is unclear whether he n was n we It obtained to the search considered recently by the second circuit court of La App 2 Cir 5 27 09 leaving the apartment of approached by the defendant He was 7 arrested and 12 So 3d 1069 a In Collins purported victim when they placed in a car Officers then went to his apartment which defendant live in s in close proximity to that of the victim where the to a search girlfriend consented of the The officers apartment Collins marijuana and drug distribution paraphernalia discovered 3d So was 44 248 at 11 12 at 1078 The evidence presented in Collins removed the defendant from his home in search or In other words Collins refused consent an was silent to whether the officers as attempt to prevent him from objecting to a they purposefully avoided seeking his permission by ignoring any whether objection by him like here the record failed to show that the defendant had 44 248 at 11 12 12 So 3d at 1078 likewise fails to show that the defendant extend to these facts On the Randolph therefore case does not find this factual scenario is much closer to that we contrary objected The record in this described in Matlock with to whether defendant from the home to avoid his objection Furthermore to support this assertion premises prior supported a to his 4 28 09 wife it does not removed was went to the defendant prior to the removed inadequate was Second the evidence removed from the even if the evidence police seeking and obtaining support the contention that he are similar to those in State v was removed to avoid his girlfriend shared an lohnson 2008 1156 apartment to obtain consent to search on two App 5 Cir In Hicks the a shooting Upon arrival the police arrested the outstanding arrest warrants and removed him from the premises They Hicks 539 F 3d at 570 under La apartment The police investigating girlfriend removed the defendant in order to arrest him same v Hicks 539 F 3d 566 7th Cir 2008 then obtained consent to search from the 1091 have may to consent there is giving consent to search 9 So 3d 1084 and U S defendant and his the police to consent These facts search the First it is unclear whether the defendant finding that he consent to search objection regard Relying on not in order to avoid his case did not 8 objection Hicks the fifth circuit court of nearly identical circumstances Likewise the officers in this The court found that the officers lohnson remove to the appeal held 2008 1156 at 10 9 So 3d at the defendant from his residence objection to the search if in fact they did to avoid his legally remanded him into defendant s wife s custody based upon s We find motion to suppress evidence We find this assignment of him error on Rather the officers valid surrender objection by the defendant consent absent any the officers to search the residence defendant a remove no error by his surety was The sufficient to allow in the trial court s denial of the this basis without merit lAILHOUSE STATEMENTS In his third assignment of jailhouse informant in known charge his the defendant asserts that cell and police planted a encouraged this informant to start a the defendant to encourage him to say conversation with to error him with murder He fails to the something that they could use provide any record citations to support this assertion When a defendant has been Fifth Amendment the Massiah Brewer State the v v use an undercover agent United States 377 U S 201 Williams 430 U S 387 Brown 434 So 2d 399 v crime and has invoked his La informant to circumvent these 84 S Ct 1199 12 L Ed 2d 246 97 S Ct 1232 1983 or 51 L Ed 2d 424 In Massiah the government overstepped constitutional bounds by outfitting radio transmitter and arranging 204 84 S Ct at 1200 1202 Sixth Amendment In of his counsel a meeting with the accused a see an informant s car with no a Massiah 377 U S at 202 or its agents of defendant after he has been indicted and in the absence Massiah 377 U S at 205 206 84 S Ct at 1202 1203 However this reliance is misplaced placing Patrick in his cell violated The Court in Massiah found active governmental participation to elicit incriminating statements unlawful in the instant there is also reversing the conviction the Supreme Court held that the The defendant relies upon Massiah to argue that rights 1977 1964 Supreme Court ruled that prohibits deliberate elicitation by the government incriminating information from his a right against self incrimination and Sixth Amendment right to counsel government may not rights formally charged with evidence of active involvement by the State To the case contrary testimony during the suppression hearing reflects that the defendant and Patrick became cellmates 9 As the trial court noted at the conclusion of the by sheer coincidence did evidence not support Rather enforcement a finding that Patrick the evidence reveals Patrick acted promise of any remuneration Galaforo s La 1992 woman v to death was La App 2 Cir convicted of second during the commission of in testimony alleging that the informant Hill incriminating information found this were not defendant own agent for law and without the charged with a writ denied 608 So 2d 192 degree murder for beating robbery Similar to the instant defendant admitted his role in the murder to his cellmate asserted that the trial court erred his an incriminating statements to Patrick Hill 601 So 2d 684 686 the defendant on as the defendant had not been Moreover murder at the time he made the In State acting was hearing the On an elderly case the appeal the defendant denying the defense motion to exclude the was placed in his cell for the purpose of eliciting 601 So 2d at 688 The second circuit court of appeal argument without merit as no evidence was presented that the statements voluntary that anyone asked the informant to obtain information from the or that the informant obtained anything of value in exchange for gathering or divulging information about the defendant Hill 601 So 2d at 689 The facts in Hill the trial court erred in are analogous to those present in this case We cannot say that denying the motion to suppress with regard to statements made by the defendant to Patrick This assignment of error is without merit CONCLUSION Having found no merit in the defendant sentence are affirmed CONVICTION AND SENTENCE AFFIRMED 10 s assignments of error the conviction and
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