State Of Louisiana VS Joseph Lemoine
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 0141 i STATE OF LOUISIANA n VERSUS 1 J JOSEPH LEMOINE 7udgment Rendered On Appeal from the Second Twenty Judicial NOV 01 2013 District Court I In and for the Parish of Washington State of Louisiana No 106083 Honorable August Hand Judge Presiding Walter P Reed Counsel for Appellee District State of Louisiana Attorney By James Adair Assistant District Attorney Franklinton Louisiana and Kathryn Landry Baton Rouge Louisiana Bertha M Hillman Counsel for Defendant Appellant Thibodaux Joseph Lemoine Louisiana BEFORE PETTIGREW McDONALD AND McCLENDON JJ McCLENDON J Defendant Joseph Lee Lemoine was eharged by grand jury indictment with aggravated rape a violation of LSA 14 He entered a plea of not S R 42 guilty and filed a motion to suppress his confession which the trial court denied Following a jury trial defendant was found guilty as charged Defendant filed a motion for post judgment of acquittal and a motion for new trial both of verdict which were denied He was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence Defendant now appeals arguing that the trial court erred in denying his motion to suppress his confession For the following reasons we affirm defendant conviction and s sentence FACTS In February 2009 six B disclosed that her uncle the old year Z defendant orally raped her B mother reported the matter to the police s Z Detective Anthony Stubbs with the Washington Parish Sheriff O arranged s ce for B to be interviewed by Jo Beth Rickels a forensic interviewer at the Z s Children Advocacy Center During the videotaped interview B told Rickels Z that defendant licked her vagina and that she had to lick his penis while they were behind a barn at her grandmother house which was located in Mt s Hermon Louisiana On February 12 2009 Detective Stubbs interviewed defendant After signing a form advising him of his rights defendant denied the allegations and claimed that he had never been alone with B Z Defendant was interviewed a second time on February 24 2009 by Detective Stubbs and Lieutenant Tom Anderson He again signed a form indicating that he was advised of his rights During the second interview defendant explained that one night when his family was camping his wife helped him into their tent because he had been drinking Z B was asleep in the same tent s Defendant wife went back out to join the other family members At some point in the night he rolled over to hug and kiss The minor victim herein is referenced only by her initials See LSA 46 S R 1844W 2 his wife When he wrapped his arms around what he thought was his wife and opened his eyes he realized that it was actually B According to defendant it Z was possible that his hand may have touched B vagina but he could not s Z remember He admitted that he had a drinking problem and stated that he did not tell anyone what happened that night because he was embarrassed and ashamed After the interview defendant was piaced under arrest MOTION TO SUPPRESS In his sole assignment of error defendant contends that the trial court erred in denying the motion to suppress his confession Specifically he argues that the confession was not free and voluntary because he was under the influence of alcohol Before a confession 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 15 It also must be established that an accused who S R 451 makes a confession during custodial interrogation was first advised of his Miranda rights The admissibility of a confession is in the first instance a question for the trial court its conclusions on the credibiliry and weight of the testimony relating to the voluntary nature of the confession will not be overturned unless they are not supported by the evidence State v Sanford 569 So 147 150 La 1 Cir 1990 writ denied 623 So 1299 La 2d App 2d 1993 The trial court must consider the totality of the circumstances in deciding whether a confession is admissible Testimony of the interviewing officer alone may be sufficient to prove a defendant statements were freely and voluntarily s given State v Maten 04 La 1 Cir 3 899 So 711 721 1718 App 05 24 2d writ denied 05 La 1 922 So 544 1570 06 27 2d Further when a trial court denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion iunless s e such ruling is not supported by the evidence See State v Green 94 La 0887 Z Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 3 95 22 5 655 So 272 280 As a general rule this court reviews trial court 2d 81 rulings under a deferential standard with regard to factual and other trial determinations while legal findings are subject to a de novo standard of review State v Hunt 09 La 12 25 So 746 751 1589 09 1 3d 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 admissibility See LSA art 703D s P Cr C In determining whether the ruling on defendanYs motion to suppress was correct we are not limited to the evidence adduced at the hearing on the motion We may consider all pertinent evidence given at the trial of the case State v Chopin 372 So 1222 1223 n La 1979 2d 2 When a confession is challenged on the ground that it was not freely and voluntarily given because the defendant was intoxicated at the time of the confession the confession will be inadmissible only when the intoxication is of such a degree as to negate the defendant comprehension and to make him s unconscious of the consequences of what he is saying Whether intoxication exists and is sufficient to vitiate the voluntariness of a confession are questions of fact and the ruling of the trial court on this issue will not be disturbed unless unsupported by the evidence State v Williams 602 So 318 319 La 2d App 1 Cir writ denied 605 So 1125 La 1992 2d Defendant contends that he was promised that he wouid not go to jail if he admitted to improperly touching the victim and that he was drunk and thought he could go home if the made the statement Defendant testified at the hearing on the motion to suppress and at trial According to his testimony he got off from work at 3 p on the day of the second interview and he 30 m immediately began drinking from that time until his 6 p interview 00 m He claimed that he was nervous about the interview and taking a voice stress test and he started drinking to calm his nerves Although he signed the rights form before the interview began he did not remember doing so because he had been 4 drinking and was not of his right mind However he did remember having a conversation with Lieutenant Anderson that was not recorded before his second interview began Defendant claims that during the unrecorded conversation Lieutenant Anderson told him to say certain things and that he would not go to jail if he did so Testimony presented at the hearing on the motion to suppress established that defendant was alone with Lieutenant Anderson before the second interview began because he was going to take a voice stress test and Detective Stubbs was not certified to give the test However defendant eventuaily chose not to take the test When Detective Stubbs entered the room defendant appeared upset but did not show signs of intoxication and his speech was not slurred Detective Stubbs went over defendant rights with him before he signed the s rights form and defendant indicated that he understood his rights Defendant did not ask to stop the interview at any point nor did he ask for an attorney Detective Stubbs testified that neither he nor Lieutenant Anderson forced or coerced defendant to make the confession and they did not threaten him or promise him anything in exchange for the confession The trial court denied the motion to suppress finding that defendanYs statement was clearly and voluntarily made without any threats coercion or improper promises The court stated that there was an insufficient basis to find the confession should be suppressed without further proof of the point of impairment The testimony the recorded statements and the waiver forms clearly establish that defendant was advised of his Miranda rights and that he knowingly and intelligently waived those rights Nothing in the record before us suggests that defendanYs alleged intoxicated state was of such a degree as to negate his comprehension or make him unconscious of the consequences of what he was saying to Detective Stubbs and Lieutenant Anderson Detective s Stubb testimony at the hearing which the trial court found credible showed that defendant appeared to understand his rights and did not appear intoxicated 5 The trial court also found credible the aetective testimony that he and s Lieutenant Anderson did not coerce defendant into making the confession We conclude as did the trial court that under a totality of the circumstances defendanYs confession was voluntary Therefore the trial court did not err or abuse its discretion in denying the motion to suppress This assignment of error is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to Louisiana Code of Criminal Procedure article 920 which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence LSA Part 920 Cr C 2 The trial court did not wait twenty hours after denying the motion for four new trial before imposing sentence See LSA art 873 However the P Cr C issue was neither assigned as error nor was the sentence challenged and defendant does not cite any prejudice resulting from the court failure to delay s sentencing Thus any error which occurred is not reversible See State v Augustine 555 So 1331 1334 La 1990 2d 35 CONVICTION AND SENTENCE AFFIRMED 6
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