State Of Louisiana VS Quentin Watson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 KA 0350 STATE OF LOUISIANA VERSUS QUENTIN WATSON Judgment rendered September 19, 2014. ****** Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana Trial Court No. 09 CR10 105552 Honorable William J. Knig~t, Judge ****** ATIORNEYS FOR STATE OF LOUISIANA WALTER P. REED DISTRICT ATIORNEY COVINGTON, LA KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE, LA ATIORNEY FOR DEFENDANT-APPELLANT QUENTIN WATSON UEU T. VO CLARK MANDEVILLE, LA ****** BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. PETTIGREW, J. The defendant, Quentin Watson, was charged by grand jury indictment with two counts of first degree murder, violations of La. R.S. 14:30. The defendant pied not guilty. He filed a motion to suppress inculpatory statements. A hearing was held on the matter, wherein the motion to suppress was denied. Following a jury trial, the defendant was found guilty as charged on both counts.. The def~ndant filed a motion for new trial, arguing that the motion to suppress should have b~en granted. The trial court denied the . , ¢' motion. For each count, the defendant was sent~nced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant now appeals, .designating two assignments of error. We affirm the convictions and sentences. FACTS On February 6, 2008, at about 11 :00 a.m., Wendy Rawls went to have lunch at the home of her mother, Anita Smith. Anita lived on 14th Avenue in Franklinton and was doing some renovation to her house. Anita's nephew, William Lewis, had been discharged from the military and was living temporarily with Anita to help her out with the home improvements. When Wendy entered the house, she found the dead bodies of Anita and William in the kitchen area. Anita had been shot once in the face. William had been shot twice, once to his chest and once to the back of his head. There was no forced entry into the house. While no gun was ever found in connection with the killings, the bullets removed from Anita and William's chest were determined to have been fired from the same HiPoint 9mm handgun. The bullet removed from William's head was also determined to have been fired from a Hi-Point 9mm handgun, but was too damaged to confirm that it was the same gun that caused Anita's head wound and William's chest wound. At the crime scene, the police found a 9mm spent shell casing on the floor near the kitchen table. The shell casing was processed, and an unknown DNA profile was found on it. The DNA profile was entered into the CODIS (Combined DNA Index System) database, and in July 2009, it produced an offender hit (a match) for the defendant. A DNA forensic 2 analyst testified at trial that the DNA from the shell casing matched the defendant's DNA profile taken from a buccal swab at a stc:itistica! rate of one in three hundred twenty billion; that is, one would have to see d .DNA profil~ three hundred twenty billion times before seeing the defendant's prome again. Jhe defenqant w.as arrested and brought in : ' , , ., , I ' Troooer Richard Newman, both with the for questioning by Captain Justin Browri and .. '. ' Franklinton Police Department. The defend.a.nt's . statement was videotaped. I ' ' ' Initially '. ¢ denying any involvement in the killings,. . the q_efencjant eventually confessed to shooting . '\ , ' ' Anita and William. The defenda11t knew Anita and .her daughters. The defendant did not . ' testify at trial. ASSIGNMENTS OF ER,.ROR NOS. 1 and 2 In these related assignments of error (addressed together by the defendant), the defendant argues, respectively, the trial court erred in denying his motion to suppress inculpatory statements, and the trial court erred in denying the motion for new trial. Specifically, the defendant contends that his con_f~ssion should have been suppressed because during questioning he invo~ed his rigt1t t() rernain silent. Following his arrest, the defendant was taken to the Franklinton Police Department for questioning. He was interviewed by Captain Justin Brown, the lead investigator, and Trooper Richard Newman. After more U1an ninety minutes of denying shooting Anita and William, the defendant ultimately confessed to the murders. The defendant told the officers that he went to Anitais house to get drugs. He explained that he shot William because he thought William was going to get a gun to shoot him. After shooting William, the defendant said he shot Anita because she ra·n in the kitchen like "she was going to get something." Shortly before the defendant confessed to the killings, he told Captain Brown and 1 11 Trooper Newman that he "don t want to talk about it no more. In his brief, the defendant asserts he invoked his right to remain· slient when he told the officers he no longer wanted to talk. According to the defendant, the officers failed to scrupulously honor his right to cut off questioning when he invoked the right. Instead, the officers 3 continued to berate him; and his tearful incuJpatory statement, taken after he invoked his I ¢ ¢ ' right to remain silent, was obtained in violatiQ(l.Qf his right against self-incrimination. - - When a court denies a motion to_ supp,re:ss, .factual and credibility determinations should not be reversed in the absence of a cl~ar apuse _of the court's discretion; that is, unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La. 5/22/95), 655 So.2d 272, 280-281. However, a court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751. It is well-settled the ruling in Mh:·anda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, . . 16 L.Ed.2d 694 (1966) protects an . individual's. Fifth Amendment privilege during incommunicado interrogation in a police-controlled c:itmosphere. In Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, the Supreme .C:oprt .. defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into ' . ' ' custody or otherwise deprived of his fr~edom of :action in any significant way." Thus, before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, duress, Intimidation, menaces, threats, inducements, or promises. La. Code Crim. P. art. 703(0); La. R.S. 15:451. Hunt, 2009-1589 at 11, 25 So.3d at 754. See State v. Patterson, 572 So.2d 1144, 1149~1150 (La. App. 1 Cir. 1990), writ denied, 577 So.2d ·11 (La·. l99l): ·Whether a showing of voluntariness has been made is analyzed on >a cas~-by-·case .basis' '\1vith .rega~d. to the facts and circumstances of each case. The ti·iai'. ·court' ·must' consider the totality of the circumstances in deciding whether a confession is. admissible. State v. Williams, 20010944, p. 13 (La. App. 1 Cir. 12/28/01)~ 804 So:2d 932, 944, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 2004-1718, p. 12 (La, App. 1 Cir, 3/?4/05)1 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544, Where the defendant alleges poi~ce rr_iisconduct in reference to the statement, the State must specifically rebut these aHegations. S~te v_,. Montejo, 2006-1807r p. 20 (la. ' ' . 5/11/10), 40 So.3d 952~ 966, ce!]:.!_dern~~: ~·-:· U5.: :·--·1 131 S.Ct. 656, 178 LEd.2d 513 (2010). Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weig_ht of the testimony are accorded great weight and will not be overturned unless they are_ not s~pported by the evidence. See Patterson, 572 So.2d at 1150. In determining wh~the;r the ru!i~g. on . ~ defendant's motion to suppress ¢ I '. was correct, we are not limited to the· eyioence ado1Jc;ed '.at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979). , The defendant's sole argument on appeal is that the motion to suppress should have been granted and/or he should have been_granted a new trial because he confessed to killing Anita and William only after he had invoK1;;:d his right to remain silent. Because it is not clear the defendant has preserved this a~gument for appellate review, we address this issue first. In 2009, defense counsel WHliam Alford, Jr. and J, Kevin McNary filed a motion to suppress inculpatory statements, which stated, in pertinent part: Defendant moves to suppress for use as evidence all oral or written inculpatory statements obtained from defendant by all law enforcement officers or other agents of the State in the above-captioned and numbered cause. .. ·.-· ···. ¢r .. · All of said confessions. and . other, inculpatory statements are inadmissible in evidence because ·they were riot made by defendant to said law enforcement officers or anyone else freely and voluntarily, but were made under the influence of fea·r, duress, intimidation, menaces, threats, inducements, and promises, and/or without. mover having been advised of his Constitutional rights to remain silent, right to counsel, etc. The motion to suppress hearing was held in June and July 2011, two years prior to trial. Captain Brown testified the defendant was arrested and read his Miranda rights. Before the defendant gave a statement (but while still on the videotape), Captain Brown read to him his rights from a standard. rights form, · Captain Brown testified that the . .. r. ... defendant never asked for an attorney and :trk:it th.~~ defendcmts statement was given freely and voluntarily. According to Captaln l3rnvvr1: ~t no .time did the defendant indicate he did not understand what he was being (O'.id, t:F~d the defen~:lant never indicated he did no prt mises to the not want to give a statement Captd~n Brown ;:;taf,.:Kl U1at he made 1 defendant, and the defendant was never phxsit~ily ;:ibused. The defendanes statement was played for the trial court. The defendant testified that hewent''taJH tne.· way through.tilgh school" and that ' ¢, he was in "Special Ed." He stated he ·gave· a false confession about killing Anita and ¢ William because he was intimidated.and thought. h.e. the defendant testified: I ' ¢ ... vv9.uld get beaten up. Specifically, Well, I come in there and I.was actua.lly ~fr.~ld of the cops because I'd never 1 been to jail, and never been in a situationJike that.r 1 And when I come ir:i, I saw a lot of cops around, and tneY.·to.ok 11'.'\e in ·~ roo111, and· ~hey started questioning,;:me. And after l told t~e~n}or so iong the truth a.bout I didnt do it, and they kept on and they .kept. on. ·And I saw a lot of cops on the outside, I actually thought they was going to do something to me, you know, because they mentioned something about one guy I heard about him getting beat up at the jail. I don't know how true it was or whatever, but they say, I heard that they took him over there and beat him up. I don't know. But when they said that, I started getting nervous and scared then, because I thought that, well, if J. dont say what they want me to say, I thought they was going to beat· me. up~ ·So l just started coming up with things to say, just lies, and start telling lies and different lies. And then I kept telling them, I told them that I didn't want to talk about this no more because I knew I kept lying. And I had to think of lies based on what they was saying about certain things, and what they was saying about the crime. I didn't know how the peopie was shot or whatever, I didnt know none of that. I was just going by what they. was saying, you know? And I was afraid they was going to jump on me, · I even asked them, was they going to take me into the jail and beat me and put me ln a cell and jump on me . I was just afraid at the tirne. I was just scared. I was scared, you know? And that's why I lied on myself.. A,nd. Tm sorry. r'm sorry to the ones that believed the Ii~. I'm sorry, you know? l'aP0icigize. I was lying. And at first I wasn't going to do it, but I prayed, and G~Jd led me to get up, and He was like, You need to tell the truth no matter if thev belleve it or not You know? So I felt like I had to teil the truth,. 1 The defendant, in fact, had a prior conviction for drug possession. Evidence of a defendant's prior experience with the criminal justice system is relevant to the question of whether he knowingly waived his constitutional rights. State v. Robinson, 2008-0820, p, 5 (La. App. 1 Cir. 6/4/10), 42 So.3d 435, 438, )!Yrit denied, 2010~1549 (La. 5/20/11), ·63 So~3d 974, 6 .J. ,. ¢ ·,;,, .... ! ,' The defendant further testified that hf.' did- not understand Captain Brown's Miranda warning to him that he had the right to remain silent. He also said that, even ·ne though he saw on the taped interview- that vvas t:xplained his rights, he did not remember any of that When asi<.~~9 '.;J!'l[71r ~~?: 1~~,3;n.:1J1~it~01} oy Ai'~brd. ''So {our· testimony to the Court is that you really tiid not v1dE~r:.?t~nd;:yuur ' mostly that I was lying and I . th~, defendant replied, "It's was afrakt'. :·Tn:e 'd,efe1\dant'futther testified on .. ' : . . - ' .·-·+-.·~ - ~." .! "'"" . . :dgrJts," - ' , ~ ·. .:. : " ¢ ,. ¢ - . ' : ~"", direct ' examination that no police officer beat hil:fl Or'.·cibiJs.~d 'r~nfi, H~ also stated th~t he did not . .·· ... ./ '. - . . ;'. know that he had the right to not make anY'.,.?.t~~teinent .~tail . .On cross-examination, the . ' ' ' ; .: ·- . ¢ .:.· -- '. ¢ '.IJ . ¢ ¢, f ' r ' defendant admitted that no police officer threatened him and that no one beat him. The defendant reiterated that he did ·not und~.rstand_that:he, hp_d th~_right to re.main s_ilent and ¢ ¢ I ¢' ¢ ~ ¢ " ¢ < ' > '· that he provided the statement be~ause he.J./as ~fra.n:L In denying the motion to suppress, the tri~I court stated: The Court has reviewed the :te~timony pre$ented in connection with the original portion of this hearingr Which_ was held on June 20, 2011, in court. The Court's reviewed _th~ 'Cclc..tua! t~ped video, recording of the statement which was m.ade to :Frc:u1kllntc;ir Poli~e .Department and Master Trooper Richard Newman dun rig the'Cbifr~e;_; or'thadnterview. The· Court .notes that ··~r~.__ ·wat~p~- was ·properly ·aovised of his constitutional rights relative to. the makin~j' 'of that. statement. The Court notes from the responses on tn-e. recordH.~g tt1at Mr. Watson,· truthfully or falsely, indicated that he understood those rights. He further understood his right to make a statement. or to not make a statement, and he voluntarily answered the questions presented by the police, and then a rather lengthy statement ensues., approxjmatei'\1 an hour and 54 m~nutes 1 if memory serves me correctly, The Court notes that at no time dw~ng the course of the statement were there any threats of violence made- No on~ coerced or intimidated him in any vyay during ,the co.u.n::>e; .qf'« th~- stat\2m6f}t, The.r:efpre, fro~n a 'officers in obta\ned' by' constitutional perspective,'' ttle statehierit~ question, is not subject tQ- .su1:wre?~ion,_ antjJ~e; M.qtioo ~o .S,uppress ~ill be ·.. ··· ::_... _ - - · ' · ·_: · ·. · ·- · · ' · · · _ denied. ·as the t~aa~·;s def~ns~ has been to The Court notes that the fotus ·: attempt to establish that Mr. Watson did not, at the time of the making of the statement, understand his constitutkx1al rights; did not have the · capacity to intelligently and knowingly waive .thqse rights. 6f While the Court certainly understands the ttirust of the Defense, the Court does not find that that has been established to the satisfaction of·the . Court. Thereforer the Motion to Suppress is tjen!ed !n its entirety. 7 , ~ ' " ,_, ... -- . ..,. -,< ···,.:,~"' ...... . The foregoing reveals that at no . . ......... ·' ... urn.e. pr~or ~9 tr-la\ q~d _the d.efendant suggest that . ,, ··,' . . ; . he invoked his right to silence during q~estioning _tJy C~pt.ain Brown and Trooper Newman. To tbe.contrary, the defend:H)t ~n'..:~?tf::rJ ai: th~ motion to suppress hearing that - . ' . . ' ' n1e written mot!on to suppress he did not even know he had the r~ght to rnr.1niain s~icnt. . ' inculpatory statements and the testimony adduced. tw defense counsel at the motion to ' ¢ ¢I ¢ ' ¢ suppress hearing addressed only the· issue. gt .the volunta,riness. of the defendant's ~·;r": ' suppr~ss conta_ip~d i!boiierplat~" lan~uage, statement. The filed motion to asserting the defendant's statement was not given freely and voluntarily, but was made under the influence of fear, duress, intimidation, etc. Defense c~unsel attempted to establish at the motion to suppress hearing the involuntariness of. the d~fendant's statement through ' ' testimony that the defendant, allegedly to . some. extentr . . '. did not understand his rights as . explained to him and that he confess~d ; .bepaqs~;,~~ was.tqtimK;1at~d by the police. The i . .... ' i ' .. : '. \ . ~· .... ' :. . ~ : . ¢ ~ Jh_e . trial court, in its reasons for judgr:n.ent,· n9ted. .·' ,:defendarit understood his rights, ..... . · . ' ¢. rJ19,ke. ·qr . to not. make particularly that he had a right to .... :· statement, and that he . (;! '. .. ' ' voluntarily answered the questions of the poiice, The trial court further noted that at no time during the course of the statement vvere,thr~ats of vi_olence made and that no one coerced or intimidated the defendant in ~·n-ry:·way ,during the entire s.tatement. The issue of the defendant's invocation of the right to sHence was not raised, much less discussed 1 by the trial court because at no time had the issue ever been placed before the court. On the day of trial, July 16, 2013, foi!owing voir dire and just prior to opening statements, defense counsel Jerry Fontenot (who was not the defendant's counsel at suppress~ h~a~!hgf:a:ddressed. the arraignment or at the motion to trial court to "'be sure ' ¢ , ,, . ·. ._., .. ·, ;-,· ·=·-'i: . ::,t·.. ~ . ri.:·.-;r·,~~;;·~,.~.r-,~·i.:. '. :· :~· ~·;'··~" ·. . .· -'· ·.·. . that we have re-urged our previously' filecr~roUol'(to Suppress the statement" of the ' ¢ ¢ ¢ defendant. Fontenot suggested the t ¢:' ( ¢, ........... -: ' ¢ .. , ; i ~·· ' c ¢, ¢ ¢" ¢ defenaahes-·statemenf was 'the result of coercion and : " ¢ 0 0 ¢ .'· \ ; : he &;iciht :be. injured 1 because he was under the impression: ' ' 11 someone else. Fontenot then alleged: ·whether at· jail or by ... ' .. ,. ~ .:.· 1 ' ¢. I : . [T]here's a spot on the tape prior to the main inculpatory statement where the defendant specifically said that he dion't. want to talk anymore, and he said it two or three times, put his head down and would not talk for -a while, They continued to question him, and that ultim.ately led to the statement ... 8 .. .'/ --- ~ . -. : '- ' . " .~. ¢ ¢ 1_' ¢. I"' Based upon all of those reason~ 1 WP woui,c;. re-L.wge_ the Motion to Suppress . the defendant's statement, and ask that it not o.e played before the jury. The trial court ruled: . . It is thus at this point -- at th_e commencement of trial, see La. Code Crim. P. art. 761 -- that defense .counsel first raised. th~ Jss1,Je- of the de:!fendant's invoking his right to ... , :, . . . ' remain silent. It appear~ the trial COUit, haVi!ig \J~'E:sided over 't~1e motion to suppress hearing more than two years prior; may .not h_ay~ had a clear recollection of the specific . : ·. : .' .. . ... : . ' .. .. . ·. . ~ .' . ~ fdti'hg', :~herein it stated that the court had issues raised at the hearing. The triaf.couries already addressed each of those conceths :a,·i1cf_i~qu~i.~·h.ot·r~d_dress ttlem, suggests lt was not aware that the issue of the defendant's . inVbtat·i-on I .. . ' of his right to remain silent was .. being raised by defense counsel for the first time. In any event, we find that the defendant, in not having raised the issue of hi? alleged invocation of his right to remain silent during the interview, in either his written motion to suppress inculpatory statement or at the motion to suppress hearing, is precluded from raising this issue on appeal. . I ¢ ' ' Louisiana Code of Criminal Procedure Article 703 provides, in pertinent part: A. A defendant adversely affeLtea may move to suppress any evidence from use at the trial on .th~ mt.~r.its. on _the ground that it was unconstitutionally obtained. · · . .' ' B. A defendant may move on anv constitutional ground to suppress a confession or statement of.any-:n~tur.e:f-n~a~ . _by -~he.defendant. . . :' "· . . " . '. ' .. . ·.. ' ' ~' ~ . ¢. C. A motion filed under the) pq)v\~i.cm~: :Of tt1is· Article must be. filed in accordance with Article 521; · unless·. opportunity therefor· did not exist or neither the defendant nor. his counsel· w9,s· awar-e of the .existence of the evidence or the ground of the motion; 'or Urlless the failure to file the motion was otherwise excusable. The court in !ts d1?Cretion. may perrl)it the filing of . a motion to suppress at any time before or during the trial. Louisiana Code of Criminal Procedure Article 521 provides in pertinent part: A. Pretrial motions shall be. made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by· the court good cause why fifteen days is at arraignment upon a showing inadequate. of .9 . . '. ' ·, ¢ t ¢' ... ; ¢ ¢. ¢ . t· B. Upon written motion at any tirn~ and a showing of· good cause, the court shall allow additional time to fjle pretria~ motions. These provisions allow a defendant to ob1:ec.t to the admission of a confession by the filing of a motion to suppress or: any. con':JtitutioPoi grounds. He must file this motion within the time limitations set by the triai }pd1y2, .wnir.:r~ .m.ay .even be dur·mg the trial on the merits, and must assert the constituti~m<J~. gr9v11~s under which the confession must ~hereunder. The prWy exception to this be suppressed and the facts entitUng ·: hirn tq reBeJ ;, ,., '·. · .. · . ,·.··:. - .. ,· .. ' . ( rule is if the defendant or his counsel was, u11aware .of.~h~ evidence or the ground of the ·, ; ¢ J ¢I ¢ motion, or the failure was otherwis~ exsu~abie~: ,~o~:tejo, 2006-1807 at 21, 40 So.3d at 967. Louisiana courts have long held .a d,eft:ndant rnay not raise new grounds for suppressing evidence on appeal that he did not .raise. at the trial court in a motion to . . . ~ suppress. Montejo, 2006-180,7 at 22f 40 So3d aJ 967 . See La. Code Crim. P. art. 841; State v. Brown, 434 So.2d 399., 402 ·(La; 1983) (rejecting defendant's alternative ' . . . . suppr~s.s argument regarding the denial of his motion to . ' p,. t? .(La. App. 5 Cir. 5/31/94), 638 94~120, issue at trial). See also State v. S01ith,. because he .had..not raised the ' So.2d 452, 455 (where the fifth circuit found, that since .neith~r .the motion to suppress . ¢, ... . . ' ' ' ' confession nor the evidence presented at the heari.ng Qf. that motion, which chalJen.ged . : ..: . . ., . . ; the voluntariness of the statement, raisec:i a.Uegatipns.of an illegai arrest, '.'any question as . . .. . . . to the illegality of defendant's arrest is not properiy nefore this Court"). We recognize that while the issue of the, defendanf s invocation of his right to remain silent was not, as a matter of form, rajsed for the first time on appeal, defense counsel's re-urging of the motion to suppress on a pew basis (regarding an issue I theretofore never raised, discussed.I! or .a.rg,ued: .·qver ·1:w:Q years after the ruiing on the . ¢ . . motion to suppress, af1d on the dilatory and, as such, improper. '. ~rst .... : ! ¢ ¢ . .. . . ·~. '. : ....... ~ . ' : ! ¢ . . . . day of tri~l,.!1'.1J~1utes.'before opening statements) was Adefendant. must; assert all grounds for suppressing the evidence of which either defendant or defen~e, co.unsel were aware, Montejor 2006- 1807 at 43f 40 So3d at 980. See La. Code Cs1rr1c P. art. ~703(E)(1). While the burden of proof was on the State on t~e trial of the motion to suppress to prove the admissibility of the confession, the defendant was required to raise all ',.,_ lO. . . -,· ., ... . # ¢ / ··.I i . I I . , grounds for suppression of the evldence t~1at. were knpwable or available at that time. The defendant bears this burden m order to g~ve ttle St~te adequate notice so that it may present evidence and address the iss1c:e at trial· Qn: tn~ .motfon. Montejo, 2006~ 1807 at 24, 40 So.3d at 969, Because the defen~jdnt did n·Jt raise the issue of invocation of right to silence in the written motion to suppress or at. rhe · rn9tion to suppress hearing, the -·- .. ' sh.Pvv that the defendant nev:er made a clear . . . State had no need to put on evidence to ' . ~= assertion of his right to remain silent. Id In State v. Barton, 2002-163 (La. App, .5 .Cir. 9/30/03), 857 So.2d 1189,. writ denied, 2003-3012 (La. 2/20/04), .866 . ·s.o.2d S.17, th~-- defendant filed a. motion to . . . ·_'. ' ' '. suppress statements alleging he made the statemeoQ> ~nder duress. -The motion to . . '.: .. . . 'I'' ¢·. . . . : ' . suppress was denied and, at a subsequent hearing; th~ pef~ndant's new counsel asserted .! . . for the first time that the state.ments should be. sup~ressed because he was illegally ¢ ~ , ¢ ' , 0 .. ¢ ¢ ¢ f , ¢ I ¢ ¢ arrested. The trial judge found the defendant to be. pr~ciuded from re-wrging the motion . ¢ : ¢ ! ' ·. on a new basis. The trial judge reasoned th~t t.h~ facts ~nd circumstances were known to ' , , ' ' I ·; ~ .'· ¢, ! , , ·,_- ·' ' ¢ ... :· ¢ \ . the defendant at the time of the original. motion.to suptjre~s and ¢ ¢ .· . I . ¢ , ¢ t~at a defendant should I not be able to re-urge a new basis for. the motion simply upon obtaining new counsel. ci.n~_uit Affirming the trial court's ruling, the fifth. fq!Jnd that since the defendant did not argue at the original suppression hearing that the statements were the produc.t of an illegal arrest, the record contained no evidence of the circumstances preceding the defendant's arrival at the police station; as .suchr tt1e court was now precluded from reviewing this claim on appeal: .Barton,. . ... ,.. · ' 200.2~1631 .at , '. ' . 12.-13,, .8.~7 So2d at 1198-1199. . ¢. See Montejo, 2006-1807 at 44, .40 So.3d .cit :9,SL{where the supreme coµrt found that . : '., . ' ' .. ·1.·, .·· ' ·,, l ' ·' ¢ the defendant's testimony at trial' : that hR-, . as;;erted., hi~,.right to ·counsel when police ' ¢ . . .i I. ¢. : . ' . : . : ; . I Wj ' ~ ¢ ¢ : approached him in 2002, and. that his.. subse.quent ,waiv~r. was .invalid 9ecause the police # '.'' ¢ ' ¢., ¢ ¢ ¢ ¢ ' misled him into thinking he did not have an .aP,:prneyr/.:ametoo late for consideration as to the admissibility of that evidence because }.tho.se .grounds for suppressing the evidence . ·. . ' were available, but were not asserted by defendant in a motion to suppress), See also State v. Hawkins, 95-0624, pp. 3-5 (La, App, l Cir, 2/23/96), 669 So..2d 5871 589, writs . 1.1 . · ' .. ' ". '" denied, 96-0738 (La. 6/2.1/96), 675 So.2d J0781 and 96-0801 (La. 6/28/96), 675 So.2d 1120. ')d . ·"' J c. -; ¢7 La. l In State v. Serrator 424 So.,,, .:--·14 ""lv·.ci. ('' '982) ; our supreme cou rt found that the defendant's failure to address a ccH1tention that t11s confession was the product of an illegal arrest and was procured. in v~oia,tion of his right to counsel in his pretrial motion did not preclude him from rC1isin~ thes~ new issues on appeal since the defendant, despite not raising the issues pretrialf raiseq _the new issues in his motion for new trial and were thus considered properly before. the. court. The defendant in the instant matter filed a motion for new trial; howeverJ. just as with the filed, written motion to suppress and the hearing on the motion to suppress~ the defendant did not raise the - . issue of his invocation of the right to remain· silent in his. motion and memorandum for new trial. At the hearing on the motion for: new .trial, the defendant raised no issues, new or otherwise, but submitted the motion without argument. Serrato is thus distinguishable from the instant m.atter.. See. Smith, 94-120 at 6-7, 638 So.2d at 455456. Based on the foregoing, the issue of whether the defendant invoked his right to silence during questioning is not properly before this ~ourt. The defendant's failure to preserve the issue notwithstanding, we find that the defendant did not invoke his right to remain silent while being questioned by Captain Brown and Trooper Newman. Whether the police have scrupulously honored a defendant's right to cut off questioning is a determination made on a case-by-case basis under the totality of the circumstances. State v~ Leger, 2oos-cfo1I> p~ ·i 4(La. 7/10/06), 936 So.2d · 108, 125, cert. denied, 549 U.S. 1:221, '127 s.ct::'z121~;:: i67 i'L~d.:2d ioo"c2oo7) ... One of the questions posed by Captain Brown throughout"the intervfew was whether the defendant .. ' went inside Anita's house. ·While dodging this questionf the defendant continued to talk to the officers and answer their questio~s . ,.(while at the same time denying any involvement in the murders). Finally, when it became clear to the defendant that forensic evidence placed him at Anita's house, Captain Brown reµeatedly asked the defendant if he went inside the house. The defendant responded: "I don't even want to talk about it no , ' . (·, ....... "l' ¢· - more, cuz no matter what I teli y'all. man .... rp·i stuck .in the middle of [unintelligibie] anyway. I don't want to talk about it no more [crosstalkwith Trooper Newman]. I don't even want to talk, man." The defendant put his head on the desk and said, "I didn't, man." During the almost two hours of questioning, this is the only instance (about 84 minutes into the interview) where the defendant said he did not want to talk. In Leger, our supreme court found that the defendant Jnvo~ed his right to remain silent when he told the police he did not want to talk anyr11ore. Leger, 2005-0011 at 14-17, 936 So.2d at 125-126. We distinguish the exchange in ~eg~r frqrn the instant matter. During the interview, Leger was unresponsive and initi~IJy r~fused to talk at all. Throughout the questioning, Leger repeatedly stated th~t :he. dip not,wa~t to talk and particularly said . . multiple times that he "did not want to-talk: apout ' it" and "did ''I not want to talk anymore." ¢ Further, no waiver of rights form was generated ouring. this interview. We find the facts surrounding the instant interview closer to those in State v. Prosper, 2008-839, pp. 1-2 (La. S/14/08), 982 So.2d 764: 765, where our supreme court found that, given the totality of the circumstances, the defendant's comment, "I don't have nothing else to say," during a police interview did not reasonably suggest a desire to end all questioning or remain silent, where the defendant continued making other statements. See State v. Hebert, 2008-·0003, pp, 7-9 (La. App. 1 Cir. 5/2/08), 991 So.2d 40, 46, writs denied, 2008-1526; 2008-·1687 (La. 4/13/09), 5 So.3d 157, 161 (where, when the defendant at the start of the interview indicated he did not want to talk . . .. ·. . . .~ ~: . : . . to the policef and the detective continued to ask him general questions, this court found . ' : . that the police did not engage in c'onduct , \ ¢. ' . . ' '. t·h~t' de~tr~·yed the d~fendanfs confidence in his '< ¢\I '·: . right to cut off questioning, that the· defenda·n;t . 'I -. ¢ . ' ¢ 'remaihed in control of whether he would talk to the police; and the police did not browbeat the defendant into making a statement). In Davis v. United States, 512 U.S. 452, 459-461, 114 S.Ct 2350, 2355-2356, 129 L.Ed.2d 362 (1994), the Supreme Court held that a suspect during questioning who desires the assistance of counsel must unambiguously request counsel. In Berghuis v. 13. ..... ... . , .. ' .. .,_ . Thompkins, 560 U.S. 370, 381-382, 1JO S.C:t ;2250r 2259-:2260, 176 L.Ed.2d 1098 (2010), the Supreme Court found that the rule for invoking the right to remain silent was the same as the Davis rule for invoking the right to counsel; that is, the accused who wants to invoke hi5 right to remain silent . m4st do so. .unambiguously. Tt1e first time the . . ' defendant in the instant matter said he cfa:j not ¢:want to t;;:iik about it no more," it is clear vvhetr1er_ .he yvas in Aoita's house on the day of he was again dodging the question. abowt . ¢ ¢ ¢ ¢ ¢' ' : . . ¢ ' ¢. ¢ ; , ~ ¢ ¢ : l ' the murders. In other words, the defencjqn.t.oJd.not inq_l,c;ate he did not want to speak to ' .I ; ¢ , ,.,.~ : , ¢ , ·, '·: , f ' , ¢ the police at all, but only that he had nothing.to S.i3Y ~~qut his. presence or not at Anita's . ' .. , . _.·.· :: ' :11' . ¢ ,, '· ,, '. ¢. ¢' . ¢ house, given the implication of guilt h~d h~ re;spoqd~~9 .in the affirmative versus a possible ¢ t ¢ ' ' ¢ ¢ .,,,. spate of questions regarding his whereab0,uts had . . he responded ih the negative. ' . ·.... ., I . ~ ' Moreover, the fact the defendant continued tq -~peak imrr1ediately after ~aying he did not t "want to talk about it no ~ore" ¢ ¢ ¢ ' ,' - ., ¢ ' ' ' ' ¢ ' ~ ("cui: no matter what I tell y'all man, rm stuck in the middle of [unintelligible] anyway") reflected C!n intent to continue the exchange. See State v. Robertson, 97-0177, p. 27 (La. 3/4/98).; 712 So.2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed2d 155 (1998).: When the defendant said, "I don't even want to talk, man," and put his head down µn the .qesk, and the defendant then said, "I didn't, man," the officers could have rf::aso~c.miy mf~rr~d gestures were not an indication to termii1at~ that the defendant's words and aH questioning, .but rather a frustrated, emotional response to a growing awareness by the defendant that the officers knew that he, and he alone, was in Anita's house when Anita and William were kiiied. See West v. Johnson, 92 F.3d 1385r 1403 (5 Cir. I996), ~ert denied, 520 U.S. 1242r 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997) (where the court foGnd:a detective's testimony that the suspec.t said he "didn't want to tell us anything about it,." was not an invocation of the suspect's right to remain silent, but rather a denial of involvement in the crime). Accordingly, we find no error or abuse of discretion in the trial court's denial of the motion to suppress the statement or in its deniai of the motion for new trial. There was -: no unambiguous invocation by the defendant of r1is nght to terminate all questioning. The defendant had been thoroughly informed of his rights, he indicated he understood those rights, and he intelJigently waived his rights explicitly, as .well as implicitly through ,., . !4 . ¢... : . i. his actions and words. See State v. Brown;. 384 So.2d 425, 426-428 (La. 1980). The - . ~ .' . . . : i trial court foundf and our review of the. interview supports these findings; t.hat the defendant was not coerced, threater1ed, Trooper Newman. We no~e that ar thf· . mjntwniq;:1~t:p . . . '· : :. . ~· .. ' . ; . in \jny way' by Captaln Brown and . . '' .· ' ' ' . . end. qt_·~hl'l 11nter,vieyv, when Captd1n Brown asked . . . . .. ; . ' ' the defendant if they had. mistreated hirn. m ~nv wa:J, tne defendant re$ponded "No,'' A few remarks by the defendant about not wanting to "talk about it" anymore, particularly ...... ~'-' in light of the entire interv_iew, could not have .r~9:sonably put the officers on notice that the defendant sought to terminate all questioning. Cf. Leger, 2005-0011 at 14-17, 936 So.2d at 125-127. Given the defendant's ever-increasing emotionai state at this point of the interview, a reasonable officer could have Interpreted these statements as an expression of anguish or remorser especially when viewed in the :context of the defendant's demeanor, rather than a desire to terminate the interview. · In sum, we find the defendant did notpr·esenre for appellate .review his argument that he invoked his right to silence during .quesbtini!ig. We also find thatthe defendant's indication that he had nothing further to say about tne crimes did not reasonably suggest a desire to end all questioning or to remain· silent ;J~g Robertsonr 97';0177 at 27, 712 So.2d at 31. These assignments of error are without merit CONVICTIONS AND SENTENCES AFFIRMED. ' ' ¢: .'· .. '· ' I' ¢' . ¢ ' ' .J5 : ' '· . .
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