State Of Louisiana VS Jesus Gallardo, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 KA 1505 STATE OF LOUISIANA VERSUS JESUS GALLARDO JR Judgment rendered March 28 2007 Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne Louisiana Trial Court No 421 198 Honorable Randall L Bethancourt HON JOSEPH L JOE WAITZ JR Judge ATTORNEYS FOR STATE OF LOUISIANA DISTRICT ATTORNEY JAY LUKE ELLEN DAIGLE DOSKEY ASSISTANT DISTRICT ATTORNEYS HOUMA KEITH M LA WHIPPLE BOURG LA ATTORNEY FOR DEFENDANT APPELLANT JESUS GALLARDO BEFORE 1 PETTIGREW DOWNING AND HUGHES JJ JR PETTIGREW J The defendant Jesus Gallardo Jr was charged by bill of information with driving while intoxicated third offense defendant filed motion to suppress the evidence to suppress a was denied The defendant filed A was and held a thirty days supervised probation for a was He pled A hearing was held was trial and new denied were imprisonment The sentence except for defendant 14 98 jury trial the defendant a 5 R motion for and the motions half 1112 years one violation of La Following charged hearing a The defendant was period of four years suspended sentence made was Also found guilty a For his as judgment sentenced to one 2 000 00 fine on thirty day imprisonment the parish jail The defendant upon successful was ordered to completion of the sentenced to home incarceration for the balance of his other conditions and fees oral motion to reconsider sentence an and the motion suspended with the defendant being placed undergo inpatient substance abuse treatment and the defendant was The guilty motion in arrest of at hard labor and ordered to pay ordered to be housed in the treatment a not appeals designating nine assignments of which error We were was The defendant imposed The defendant denied now affirm the conviction and sentence FACTS On Kimball August 12 2003 was Louisiana on at about 1 15 patrol in the Eckerd parking lot odor of alcohol Miranda on 1 a Trooper He looked down over a a strong Trooper Kimball gave the defendant his breath The defendant Department The defendant Houma Hollywood and detected to drink that night The defendant a field sobriety test arrested for OWl and was taken to the couple of beers Trooper Kimball conducted which the defendant failed in in his car as he entered the road from fishtailing s Trooper Carey Hollywood Road on a car warnings and asked him how much he had Houma Police near Trooper Kimball pulled the defendant the defendant responded that he had 1 Louisiana State Police parking lot Trooper Kimball heard tires spinning Road and observed the defendant barroom s a m was was brought to the Kimball testified at both the motion to suppress and the trial 2 lntoxilyzer room where he was advised of his rights relating but refused to take form a to taking breath test or breath test The defendant a answer any signed the rights questions ASSIGNMENT OF ERROR NO 1 In his first failing to grant his motion defendant after are vested with a cert denied 1179 denying the the Miranda 2 on a State 544 s U v 977 was doing 125 S Ct 1860 161 L Ed 2d 728 was 884 2005 given all The trial court further found that sign off on anything indicated that test a mounted camera in it that and arrest of the defendant The defendant contends that at no time specifically his right against self Our review of the the defendant determining did a review The of the with videotaped videotape was videotape reveals was Trooper Kimball ask him if he waived his rights incrimination videotape indicates that shortly after Trooper Kimball stopped he gave him his Miranda quickly and clearly by In motion to suppress Trooper Kimball s less than six second enumeration of the Miranda warnings unintelligible and that 2 on a 3 stop field sobriety submitted into evidence that to counsel long 2003 2592 p 5 La 99 04 warnings and that he understood them Trooper Kimball s police unit had the knowingly and intelligently motion to suppress the trial court found that the defendant he knew what he the motion to suppress will not be disturbed the defendant s refusal to take the breath test and to audio by Trooper Kimball the State failed to demonstrate that great discretion when ruling trial court abuse of that discretion SO 2d 1176 In evidence obtained privilege against self incrimination and his right Consequently the ruling of an all to suppress being Mirandized by Trooper Kimball Trial courts absent the defendant argues that the trial court erred in error the defendant contends that Specifically waived his assignment of rote they were warnings intelligible While the As noted warnings were by the trial court delivered Although ruling on the defendant s motion to suppress was correct we are not limited to hearing on the motion We may consider all pertinent evidence given at the Chopin 372 So 2d 1222 1223 n 2 La 1979 whether the the evidence adduced at the trial of the 3 case State The defendant filed State v a v writ application La App Gallardo 2004 1375 with this court lOr 8 23 04 3 seeking review of this issue unpublished writ action The writ was denied the rights read fast the Court finds that were We the defendant informed of his all the Miranda warnings agree with the trial court that the defendant were was given to adequately rights Upon Mirandizing the defendant Trooper Kimball asked him if he understood these The defendant nodded his head in the affirmative rights the defendant to drink why he stopped him The defendant tonight four beers rights and then Kimball he had been Before the accused a 1980 I had responded in response to How much you had couple of beers a About three or rights when he acknowledged that he Trooper Kimball question told Trooper s drinking confession may be introduced into evidence the State must establish that was advised of his constitutional Constitution and the S Ct 1602 Trooper Kimball told He then asked the defendant We find that the defendant waived his understood his 4 Supreme Court 16 L Ed 2d 694 the Louisiana When 1966 s 5 rights under Article decision in Miranda In State v I 9 13 of the Louisiana Arizona 384 U S 436 86 Brown 384 So 2d 425 426 427 v La Supreme Court stated during custodial interrogation is sought to be introduced into evidence the state bears a heavy burden to show that the defendant knowingly and intelligently waived his right against self incrimination and the right to counsel Miranda v Arizona 384 s U 436 a statement 16 L Ed 2d 694 86 S Ct 1602 s U made In North Carolina 1966 369 99 S Ct 1755 60 L Ed 2d 286 Court reiterated that the state s 1979 burden is v Butler 441 the United States great Supreme and that the courts must presume that a defendant did not waive his rights However in Butler the Court also held that the waiver of Miranda rights need not be explicit but may be inferred from the circumstances surrounding the statement the words and actions of the person 4 In his rights reasons stated understand affirmation 5 for denying the The defendant motion to suppress the trial court in finding the defendant understood his stated on the tape that he understood and I wrote down he said I Given the less than also was spoken superior quality much he had inculpatory statement and was of the audio on the videotape whether the defendant s is unclear We find that under these circumstances to drink interrogated was made clearly during a where pursuant to a DWI stop the defendant was asked how walk away from the encounter the defendant s If the defendant was not in custody or custodial interrogation not free to interrogated arguably Miranda would be inapplicable since defined by the United States Miranda applies when individual is subjected to custodial interrogation as initiated by law enforcement officers after a person has been taken into Supreme Court questioning Miranda v State of way custody or otherwise deprived of his freedom of action in any significant was free to walk away at the time he was an Arizona 541 543 3 84 La s U 436 444 86 S Ct 1602 1612 16 LEd 2d 694 1978 4 1966 State v Yates 357 So 2d An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver or but is not sufficient to establish waiver necessary not one of form inevitably either The question is but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case As was uneqUivocally said in Miranda mere silence is not enough That does not mean that the defendant s silence coupled with an understanding of his rights and a course of conduct indicating waiver may never support a conclusion that a defendant has waived his rights The courts must presume that a defendant did not waive his rights the prosecution s burden is great but in at least some waiver cases be can words of the person In Moran 410 1986 Burbine 475 v the United States clearly inferred from the actions and interrogated 99 S Ct at 1757 s U 412 421 1140 1141 89 L Ed 2d 106 S Ct 1135 Supreme Court stated Miranda holds that t he defendant may waive effectuation of the rights warnings provided the waiver is made voluntarily in the conveyed and intelligently The inquiry has two distinct dimensions First knowingly the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation coercion or deception Second the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived Citations omitted When the defendant them he acknowledged with pertaining to the offense of much he had been no given his Miranda warnings and asked if he understood was nod that he did and a DWL The response drinking that night was indication that the defendant wanted Kimball s There is question suggest that the defendant have led him to waive his his free will cert denied See State 525 This is not an a case college in a Robertson 97 0177 where the person or did not want to or anything on v p 26 La being questioned never James 528 F 2d 999 5 question There answer the was Trooper videotape to deceived in any way that would or 142 L Ed 2d 155 situation he had type of See U S attorney a question of how to remain silent for any reason other than s U 882 119 S Ct 190 caught by surprise two years of v to the to immediate and without reluctance intimidated coerced was respond to by the defendant evidence in the record no right proceeded 3 4 98 as a function of 712 So 2d 8 30 1998 was of low level anticipated 1019 1020 intelligence The defendant had 5th Cir 1976 cert denied 429 at least s U 959 97 S Ct 382 50 L Ed 2d 326 the third time the defendant had 1976 Moreover this DWI been arrested for DWL stop was As discussed in Robertson 97 0177 at 26 712 So 2d at 30 A individual prior experiences with the criminal justice system are relevant to this inquiry because they may show the individual has in the past and perhaps on numerous occasions been informed of his constitutional rights against self incrimination both by law enforcement and One of the ways that people are educated and gain an judicial officers of things is through repetition through repeated exposure understanding and it is permissible for the trial court to read an individual s Miranda waivers Citation omitted against that individual s criminal history n s The defendant had been arrested and convicted rise to the giving silent permissible inference he Under these circumstances statement thereafter his we was more on at least two prior occasions than familiar with his right to remain find that at the time he gave his statement to Trooper Kimball the defendant had been or any adequately informed of rights understood those rights and his waiver of those rights could be clearly inferred from his actions and words abuse of discretion assignment of error See Brown by the trial court in 384 SO 2d at 427 428 Accordingly we find denying the defendant s motion to suppress no This is without merit ASSIGNMENTS OF ERROR NOs 2 3 and 4 In these related erred in allowing the State court erred in court failed a denying him a to inform him of his December 13 2002 18 2003 to on Following the verdict the asserting that the trial court June 18 2003 This was defendant filed a the was right to waive trial by jury requested that to a DWI 6 it be allowed to second offense motion in arrest of did not conform with the committed to the bill of information judgment and supporting requirements of La Code Crim P art right to waive trial by jury Following denied 6 on changed the guilty plea date of June only change made the time of arraignment it did not inform him of his motion day of the trial the trial The unaltered bill of information indicated that On the amended bill the State August 13 2003 6 the State to voir dire date in the bill of information pled guilty the defendant argues that the trial court requested continuance following rearraignment and the trial day of trial prior the defendant error to amend the bill of information on the during the rearraignment On the amend assignments of memorandum 780 in that at a hearing the Louisiana Code of Criminal Procedure article 487 A to the amendment of A An an provides as follows with regard indictment indictment that charges an in offense accordance with the provisions of this Title shall not be invalid or insufficient because of any or imperfection in or omission of any matter of form only or because of any miswriting misspelling or improper English or because of the use of any sign symbol figure or abbreviation or because any similar defect imperfection omission or uncertainty exists therein The court may at any time cause the indictment to be amended in respect to any such formal defect imperfection omission or uncertainty defect Before the trial respect to a ordered on the In a begins the court may order an indictment amended with defect of substance After the trial the trial begins when the first prospective juror La Code Crim P art 761 out in State Johnson v mistrial shall be a ground of a defect of substance jury trial examination begins 93 0394 p The law 3 La on is called for amending bills of information 6 3 94 637 So 2d 1033 1034 1035 is set per curiam Const La prosecution accusation an 1974 Art 9 13 provides that I n i n accused shall be informed of the nature and n criminal a cause of the requirement protects right to defense and exercise fully his rights of confrontation and cross against him This the accused s prepare a examination The bill of information must therefore inform the defendant of the nature and cause of the accusation to allow him to prepare for trial as well the admissibility of the evidence amend substantively trial has begun In the did not err in was as to allow the court to determine Accordingly the state may not charge a new offense once bill of information to a Citations omitted instant matter prospective juror against him in sufficient detail called the State Therefore requested the amendment before the first it was entitled to amend the bill The trial court overruling the defendant s objection to the amendment rearraignment of the defendant the defendant moved for a Following the continuance which the trial court denied Louisiana Code of Criminal Procedure article 489 provides in pertinent part motion of the defendant that the defendant has been prejudiced in his defense on the merits by the defect imperfection omission uncertainty or variance with respect to which an amendment is If it is shown made on the court shall grant a continuance for a reasonable time determining whether the defendant has been prejudiced in his defense upon the merits the court shall consider all the circumstances of the and the entire course of the prosecution 7 In case The purpose of the continuance is the defendant The defendant has the burden of prejudiced the defense to grant continuance a establishing that Further the trial court has State v Davis 385 So 2d 193 third offense The 197 198 The defendant knew he present charge and the two amendment has in deciding whether arbitrarily La The defendant has failed to demonstrate that his defense result of the amendment to the bill an great discretion and his decision will remain unless he abuses that discretion 1980 prejudiced was predicate convictions were element of surprise 701 SO 2d 1001 change to the 1014 on statute violated As 99 0336 out 17 18 6 18 99 La clearly set out There was no App 2 Or 8 24 97 The 745 So 2d 618 the date of the OWl guilty plea for a only predicate The date of the commission of the crime the parish and city and the bill of information number all remained change made to the bill of information was minor and non substantive by the trial court A review of this matter seems to made La was to December 13 2002 the The pointed writ denied original bill of information OWl committed unaltered Ignot 29 745 pp as a being tried for was original bill of information and the amended bill of information v unreasonably or in both the See State to the prevention of prejudicial surprise the bill on concerning me that there the date was a To make it a typographic error hundred percent upon the request of the State the Court allowed the bill to be amended and the defendant was re arraigned Those are the facts accurate The charge was the same Everything was exactly the same Everything was the same It was a mere technicality a mere date that was changed The Statute upon which the defendant was being tried was not changed and absolutely changed nothing The date didn t change the Now so we have a trial strategy Could not change anything strategy mere technicality that was amended and that was all As there was no denying the showing of prejudice not advise him properly before a err in motion for continuance As to the defendant including the trial court did not to the defendant upon us s rearraignment of his right prejudiced because the trial to waive trial Under La Code Crim P art 555 any failure to read indictment without contention that he was objecting thereto by jury the issue irregularity in the is waived if the defendant the indictment When the defendant 8 was court did is not arraignment pleads to the rearraigned he pled not guilty The only objection upon rearraignment continuance court of his Because the defendant did not right to waive trial was object to the trial to not issue is waived by jury the court s denial of a being informed by the trial See Ignot 29 745 at 18 701 So 2d at 1014 Moreover rearraignment is made to right to be motions his that the waiver deficiencies not to alter the nature of the crime not entitled to an upon the amended bill State under these circumstances original indictment applied SO 2d 749 752 information which had La the defendant had These 1975 no a s defendant is without to file the usual See State v given the minor amendment made Thus effect on the right to be rearraigned and error are present charge or was not the two a pretrial La 509 at his guilty plea to the amended indictment defendant s charging instrument a 362 So 2d 508 the defendant no assignments of opportunity Strother v the notwithstanding issue Where the amendment of wholly unnecessary rearraigned and is Furthermore on was cure find we 1978 arraignment Bluain 315 to the bill of predicate convictions entitled to continuance a without merit ASSIGNMENTS OF ERROR NOs 5 6 and 7 In these related erred in denying Intoxilyzer assignments of his motion in limine error and admitting test and the trial court erred in to a chemical test may be considered in the defendant argues that the trial court into evidence his refusal to take instructing the jury that his refusal an to submit determining guilt During trial Trooper Kimball testified that after he arrested the defendant for OWl he took him to the Houma Police Intoxilyzer defendant room where he was signed the rights form test The defendant refused to 7 In his motion in limine take a Department The defendant read his to taking a brought to the breath test The Trooper Kimball offered the defendant the Intoxilyzer give him the defendant rights relating was sought a to breath prevent breath test 9 sample for the test the introduction into evidence of his refusal to At the time of the offense RS La admissibility of the defendant s refusal Evidence of his refusal 32 666 A 2 to take a chemical shall be specifically provided for the c test8 admissible in any criminal action or proceeding arising alleged of age was driving or in actual physical control of a person regardless motor vehicle upon the public highways of this state while under the influence of alcoholic beverages or any abused substance or controlled s dangerous substance as set forth in R 40 964 out of acts Accordingly into evidence The ruling on to have been committed while the find the trial court did not we See State the motion in limine admitting the defendant s refusal 498 SO 2d 136 Washington v err in was correct 138 refusal to submit to chemical test may be considered in a This statement mischaracterizes the trial court refusal to submit to a chemical test of the trial the trial court stated the In all other cases s instructing the jury that determining jury charge relating charging the jury In App 5 Or 1986 9 The defendant further contends that the trial court erred in his La on his io guilt to the defendant s this issue at the conclusion following person under arrest for driving while intoxicated may refuse to submit to a chemical test If you find that the defendant did refuse to submit to a chemical test you may consider that fact in a determining whether he was driving under the influence of alcohol Although you may consider the fact that defendant refused to take a chemical test the refusal creates no presumption that the defendant was intoxicated In other words if the defendant refused to take a chemical test that fact alone is not sufficient to prove that the defendant is guilty Evidence of refusal to take a chemical test may be considered in light of all of the other evidence and you as triers of fact weight if any you think such verdict deserves Evidence of refusal to submit to weight of such evidence 8 as pointed a out shall determine what chemical test is relevant and admissible and the by the trial court is to be determined a test of the person s blood breath urine or other of determining the alcoholic content of his blood La R S 32 661 A 1 purpose 9 A chemical test includes In his brief the defendant asserts that La previously twice refused to take The defendant misreads the law a trier substance for the provides that only in the event where a person has present refusal to take a test admissible in evidence R S 32 666 chemical test is his Under La bodily by the person may not refuse to submit to a previous and separate occasions of any of the chemical test becomes mandatory after so many R S 32 666 A chemical test if he has refused to submit to such test a i a two However while the taking the person s refusal to submit to a chemical test regardless of whether it is his first second or subsequent refusal is admissible as evidence in any criminal action or proceeding See the 2003 version of 2c La 5 R 32 666 A previous such violation 1 on refusals 10 The defendant does not brief this nevertheless jury charge issue address the issue 10 which is raised in assignment of error 6 We of fact See Washington 498 So 2d at 138 La s R 32 666 11 The jury charge was proper These assignments of error are without merit ASSIGNMENT OF ERROR NO 8 In his eighth assignment of allowing him prints to be the defendant argues that the trial court erred in error fingerprinted during trial to the defendant defendant contends that s the State so two prints from the g The defendant defendant A fingerprints s fingerprints in open court This Requiring a error is on that its fingerprint prints the on so the bills of the defendant s grounds that giving his fingerprints incrimination is not violated defendant to State court did not err in assignment of the State objection and to be taken not violate the Fifth Amendment Accordingly the trial the opening statements The trial court overruled the privilege against self s to the objected iving evidence against himself allowed the defendant to fingerprint the defendant expert could compare and match those prints was Specifically taking his prints violated his privilege against self incrimination informed the trial court that it needed to DWI convictions expert could compare those predicate convictions Following the dismissal of the jury and prior prior s v his by taking supply evidence of his identity does House 320 So 2d 181 182 La 1975 allowing the defendant to be fingerprinted without merit ASSIGNMENT OF ERROR NO 9 In his ninth failing to grant being shown contends that the arrest a on assignment of mistrial when the the Trooper Kimball s v testifying arresting officer commented about what a a legal defect verdict reversible as a Walker 2005 0875 p 4 La App Intoxilyzer test is admissible Refusal to take the 11 arrest in the jury about what he felt proceedings that would make any matter of law 4 Cir 3 29 06 as was Specifically the defendant comments to the extemporaneous tape showed constituted See also State stated the defendant argues that the trial court erred in videotape of the defendant s DWI judgment entered upon 11 error 930 So 2d 94 96 where the court evidence of intoxication under La R S 32 666 At trial field the prosecutor test and sobriety played for the jury the police videotape of the defendant s subsequent by Trooper Kimball arrest initially played the prosecutor asked Trooper Kimball what we re going to be looking happening during the first few was Ill stating object to the Officer personal opinion of what he need someone to tell the As please at moments of the the videotape Trooper generally can was you tell us Trooper Kimball began explaining what extemporizing sees to As the videotape the defendant objected over the tape because he jury The tape should speak for itself to be jury what they re supposed giving s his We do not seeing Following argument the trial court sustained the defendant s objection stating So it s the ruling of this Court that the Trooper will The trial court further videotape entirety not be allowed to narrate over the explained that after the videotape the State will be allowed to question the witness was in its played concerning any portions of the tape At this point the defendant moved for The defendant videotape the a mistrial under La Code Crim P art 775 argued that because of Trooper Kimball to the jury before he had an opportunity to describing the s object there proceedings that would make any judgment entered matter of law statements 12 The trial court denied if any would not be the motion for prejudicial on a a was a events on the legal defect verdict reversible mistrial finding that in as a the The trial court did to the defendant s case not admonish the jury Louisiana Code of Criminal Procedure article 775 ordered when prejudicial conduct defendant to obtain a fair trial provides that in or outside the courtroom makes it However a mistrial is a drastic a mistrial shall be impossible for the remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of should be fair trial Determination of whether granted is within the sound discretion of the trial motion for mistrial will not be disturbed 12 a on court a and the denial of appeal without abuse of that discretion See La Code Crim P art 775 3 12 mistrial a State v Berry 95 1610 0278 La 10 10 97 The 7 p over 1 Cir 11 8 96 App 684 So 2d 439 writ denied 449 97 703 SO 2d 603 testimony extemporizing La in the described question is the tape by the defendant as Trooper Kimball following At this point here I m behind with my lights and he s pulled into the Exxon Station I just advised him to get his driver s license registration and insurance At this point right here I had a personal from when the car was on I failed to turn it on I forget to turn the button or to Sometimes the mike to work at the total beginning of the stop The mike you re get picking up is the one that s on my car right there Initially we find that the prosecutor and not testimony was extemporizing introductory Moreover viewing Trooper Kimball the videotape defendant s responding asserted as by the defendant Trooper Kimball Trooper Kimball explained what he ie at this objection is point simply to get his license The rest of a brief question asked by to a direct in nature and served to orient the immediately after stopping him on was etc jury was as to what it s was telling the defendant because there Trooper Kimball s was no testimony explanation of why there is no audio before the audio on the videotape We find nothing in the limited explanatory testimony of Trooper Kimball that prejudiced the defendant that he was trial in the There reversible was no as a the motion for legal defect matter of law a mistrial This We find deprived of any reasonable expectation of a so fair proceedings that made the judgment of guilty no abuse of the trial court s discretion in assignment of error CONVICTION AND SENTENCE AFFIRMED 13 is without merit denying
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