State Of Louisiana VS Joshua Mosely

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NOT DESIGNATED FOFt Pl1BLICATION STR(' E C F L 1I5I,4IVA CUURT' OF APPEAL FIR T CYft IT N0. 20f3 KA 1967 STATE OF LOUISIANA VERSUS JOSHUA MOSELY udgment rendered May 2, 2014. Appealed from the I A Vl 32nd Judicial istrict Court in and for the Parish of Terrebonne, Louisiana Trial Court No. 573334 Honorable Randall L. Bethancourt, Judge JOSEPH L. WAITZ, JR, AITORNEYS FOR DIS' TRICT ATTORNEY ELLEN DAIGLE DOSKEY STATE OF LOUISIANA ASSISTANT DISTRICf ATTORNEY HOUMA, L4 GWENDOLYN K. BROWN ArfORNEY FOR BATON ROUGE, LA DEFENpANT- APPELLANT JOSHUA MOSELY BEFORE: PETTIGREW, MCDONALD, AND MCCLENDON, JJ. PETTIGREW, J. The defendant, Joshua Mosely, was charged by bill of information with two counts of attempted first degree murder, violations of La. R. S. 14: 27 and La. R. S. 14: 30. The defendant pled not guilty. inculpatory statements. hie filed a motion to suppress confession and A hearing was held on he rnatter, wherein the motion to suppress was denied. Following a jury trial, the defendant was found guilty as charged on both counts. imprisonment sentences For each count, the defendant was sentenced to forty years without were benefit of ordered to run parole, probation, concurrently. or suspension The of sentence. defendant filed a The motion to reconsider sentences, which was denied. The defendant now appeais, designating four assignments of error. We affirm the convictions and sentences. FACTS In Houma, at about 3: 00 a. m., on April 18, 2010, the defendant was riding with his friend, ] ohnny Stewart ( also known as " Boochie"), and his cousin, Davole Martin. Boochie was driving, the defendant was in the front passenger seat, and Davole was in the back seat. The defendant had a 9mm semi- automatic handgun on his lap. As Boochie drove down Westside Boufevard, the defendant saw a group of people across the street near Dashley's Conveni nce Store ( or the corner of Westside Boulevard and Alma Street). The defendant tol crowd. Boochie and Davple tha* he was going to shoot at the When Boochie stopped at a stop sign, the defendant got out, walked to the back of the car, and fired about six shots into: the crawd. He got back in the car, and Boochie drove away. The defendant's gur fire struck two people, Macy Chaisson and Sarah Rollins. The two girls were friends and were hanging out with other friends when they were shot. The girls recovered from their injuries. Macy was shot in the stomach and had the bullet surgically removed about two months later. Sarah was shot through her left knee. the crowd. Neither girl knew the defendant, nor did the defendant know anyone in The defendant was arrested one month later after questioning at the Houma Police Department over his involvement in an unrelated drive- by shooting on 2 May ll, 2010. When questioned about th incid rmfi or R,pril 18, the defendant admitted in a recorded interview that f e shot the tvvu girls. The defendant did not testify at triaf. ASSYGI F IEN`fi fl RftOR IVO. 1 In his first assignment of error, khe deferecia t arga es that the trial court erred in denying his motion to suppress inculpatory statements. Specifically, the defendant contends that neither he nor his father were able to comprehend the Miranda warnings; he was promised leniency in his second interview, wherein he confessed to the shootings; and his second interview should have been inadmissible because he invoked his right to silence in the first interview. Testimony and evidence introduced at the hearing on the motion to suppress inculpatory statements established that the defendant was bro ught to the Houma Police Department for questioning on May 18, 2010. , The si een- year-old defendant was with his father, 7ravelyn Mosely. Accordi g to Detective Travis Theriot, with the Houma Police Department, the defendant was a suspecf in a drive- by shooting that occurred the previous night ( May 17), wherein two peopl had been shot. Detective Theriot testified at the hearing that he presented a form from the Juvenile Division to Travelyn and the defendant, entitled " Rights For Interrogation Of Juveniles." The form contained the complete Miranda warnings, and indicated to the defendant that before deciding whether he wanted an attorney or to answer questions, he would be given the opportunity to discuss these issues with his father. Detective Theriot read the Miranda warnings aloud to the defendant and Travelyn. The form was dated May 18, 2010, with a time of 7: 04 a. m., and signed by TravQlyn and Detective Theriot. Following standard procedure, Detective Theriot left the ir,tervi w room t his son his rights and the options availabfe to him. allow Travelyn to discuss with Several minutes later, Travelyn summoned the detective back to the room and informed him the defendant was ready to answer questions. At that point, Detective Theriot went over two more forms with Travelyn and the defendant. The " Acknowledgment By Concerned AdulY' form asked if Travelyn understood the defendant's rights; if he discussed those rights with his son; if 3 he discussed with his sori that alyi:hin he says an e ! sed against Ihim in court; and if he discussed with his son that he had a righ checked " yes" o r atterr? at no cost to him. Travelyn ey to tl ese four aue tion, ' initi4l d The " Child' s Consenk To Questio+ i; g" ` he discussed his right to remain s: l question, and signed the form. ha h was rea rm; at ar a fi d: tus ta the defendant, asked if to ac swer questi9ns; if he discussed that anything he says can be used agair st him; if he discussed his right to have a lawyer represent him; if he understood these rights; and if he was willing to answer questions without having a lawyer present. The efendant checked " yes" to these five questions. The sixth question asked the Gef ndant if any threats or promises had been made to him or if he had been pressure The defendant checked " no." rights. ir to ar swrering questions or giving up his The defendarit nitialed each question and signed the form. Detective Theriot and Detective Dextec petiveaux, with the Houma Police Department, then interviewed the defendant. was questioned about a In this audio recording, the defendant drive- by shooting the night before ( May 17). The defendant denied any involvement in the shooting. When the defendant was told to tell the truth three other witnesses in the vehicle identifed the defendant as the shooter), he began Travelyn stated, " Boy stop cryin. crying. start catching his seiz anyone. Travelyn then res . . . said, " Tak Just book him man, because h' s going to hi n t Josh, Josh jai." t us` shut Trde efendant again denied shooting p. i can go?" Travelyn then left the police station, and the det ctive termi ated questianing. One of the three witnesses in the vehicle wikh the defendant had earlier informed Detective Theriot that the defendant was also re ponsible for a shooting on Westside Boulevard ( a minutes month ago, and after the the instaht defendanYs matter. interview had T rus on the same day, May 18, only been kerminated, Detective Theriot contacted the lead detective on the other April 18, 2010 shooting case, Cher Pitre, with the Terrebonne Parish Sheriffs O ce. Shortly thereafker, Detective Pitre, along with Detective Donald Tomlin, with the Terrebonne Parish SherifPs Office, arrived at the Houma Police Department. Before speaking to the defendant, Detective Pitre had an a officer from the Hou him back to the alone. speak C Pulic e 7ravefyn crccurred m a r pu hat w i, n'c , a i police sta'tion. She irrforme incident that r a 7"; ed rr;` s i+ ai, [ i r F# etecti; e Pitre spoke to him oss;bly thF sFiooter sr another ra e y s^ t kd, , ; r ri ¬.+' a th e r9ae to the defendant, Trave! yn aveiyn fr m his house and bring i eold 7rav fn s e wanted to w they entered the inrerview room together. In the pre- interview, prior to any re ordor g, the defendant was asked about the April 18 shootings, wherein he denied_ any knowiedge of the incident. Travelyn demanded of his son that he tell the trutf. Acc rdin, t Detective Pitre, Travelyn asked the defendant if he had a gun, and the def r dank nodded. Travelyn then asked the defendant if he shot two people, ancf. again the . efe?dant nodded. Travelyn became very upset and ieft the interview roam.. Detectives Pitre and Tomlin remained v, ith the defendant to question him about the shootings. black Honda In this with second audio Johnny Stewart, recording, th also efer dant stated he k own as °' Boo hie." as riding in a Baochie drove to a street by Cannata' s and stopped at a stap sign. The defendant yot out, walked to the back of the car, and times. staned shooting He got back in the car, a, a t ar d gr up pec i, " he defen ant said he fired six ochie. drove avay+. Later that roeght, the defendant saw a friend, Dustin Calloway, on ar oth r ar, Ba chie ulled up to the ather car, and the defendant told Dustin that he shot tvvo gir"s. f+tlore questioning ensued before the s interview was terminated ak 11: 2 a=m. r May 16, 20A0. Travelyn testified on direct ex mination at the motdon to suppress hearing that he had a fifth or sixkh grade eduea$ian remembered the detective telling h.im th an thai he could nat read. He s"ated he t d? f r dant had a r ght +_ a lawyer, but he c Travefyn) was sleepy. On cross exarninakion, ' T avelyn admitted that he could read. Travelyn further stated that he f ad prior convictions and knew that if he could not afford an attorney, one would be appointed ta haPra. The trial court then aske Travelyn if he understood that his son had a r ght to a iawyer arid that if he could not afford one, he wou[ d get a '° free one," Travelyn responQed ir. he affirmative. The tria! cou t asked 5 Travelyn if he knew that anything on that o rn w4uld be used against his son. sa Travelyn responded in the affirmative. The defendant testified at the nrsotion k4 suppress hearing tha he had been awake gone long time and that a graduation party for a to and ir, ver? eariier th t dranik icaho, befpre he was arrested, he had Th d fendant further stated that the new detectives ( Pitre and Tomlin) did not Nlirandize him, and that Detective Pitre told him that the judge would " take it lean" on him ,because of his youth. Also, according to the defendant, he was promised that the et cEives would tell the judge he did the shooting, but he did not want to hurt anyone. In denying the motion to suppress, the triai court provfded the following reasons: I have several observations. Numb r 1, the defendant was, in fact, evaluated by two doctors early this year who both wiil find that the defendant, at the time of their evaVuation eariy in 2011, was able to assist in the defense of his I case. will quote from Doctor Bryan Matherne. " He had been living with his grandmother and had nn significant medical problems. During my evaluation he was found ta be alert. and responsive with" no need -- " with no evidence of inentai dysfunc ion. le understood the court proceedings and is certainly able to assist his attorney in his defense." Similarly Doctor Mary Eschete apined that he wouldi be able -- " He would be able to assist his attorney and find any witnesses. Although he does have a history of probfems eantcollong F s temper, he should be able to maintain proper decorum in the courtr o n and assist his aYtnrney." Now, I bring that up because obvio usly th f st a; anc rn f the Court is the defendanYs ability to un e stand wha was goi g 7 that night. Now, truly this was -- the r pos s were d ne atter the fact in 7anuary of this year; however, there was no k stem ny brauyht up in the mction hearing that the defendant didn°t kn w what was going on. Quite the contrary, there were sfatements m de by ch defe dant which would cause the Court to conclude that the defendant knew exactly what was going on, for goodness sakes. For example, as I mentianed earlier, he even made comments about well, what v raula a udge, a. Furthermore, we have the defendant ¢asking for his fatner. And obviously the father comes not 4nce, bui twice. Now, I do realize that Mr. Travelyn Mosely may not necessarily be a highly educated man; however, if y'all remember I asked him in a roundabout way if he knew the court system and of T.V. He he told me -- ne told y' all that he was asked about -- as -- yeah, he watched a lot he heard abo at the Miranda Rights. He knew all about Miranda Rights. He knew khat he [ had] the right to remain silent, to have an attorney. So that gave me reason to believe, other than 6 in addition to the fact that we have trle c fficers do ng the questioning go over all that, all the rights with Mr. Travelyn hlosely; he understood that he had the to have his right san ot r eni: H ta ake a the right to remaon siles t. He kr ew he tad th don' t buy the have been tired and but it didn' t rise Also, ive t" h t r. ` or v cietendar, . ko the leuei l u r ; cF'c i r? right t ask for a lawyer. I elL was si ua; s ay h v r, interestingly, Mr. ' Travelyrr NE fe may been tir d as well, at they were doing, eq, s epiny. ly cames back -- leaves and Now, that ayain tells me that Mlr. Travelyn Mosely is not back. comes nt argum kne v that he had sleeping. He knows what he is doiny: He is given yek another opportunity to shut it down to say to gec a iavvyer. we need Nok once -- not once ever did Mr. Travelyn Mosely or Joshua Mosely say d want a lawyer and they were given every opportunity to do that. The facts of this case, when taken as a whole, the totality of what went down that evening, that event, on thak event leads the Court to conclude that the defendant knew what was going on, he knew his rights. He chose to talk. He chose not to ask for a lawyer. The father chose to let his son talk and prompted the talking on at least one occasion. And Mr. Travelyn Mosely never did request a lawyer as well when he could have. And it is interesting to note two other thangs r. Travelyn Mosely pretty much threw up his hands in the air, so to speak, and left. And he kind of did that atthe hearing as well wf en we had the hearing on this motion. He testified, and for whatever reason, and T wil0 note this for the record, Mr. Travelyn Mosely left this courtroom even thouah he was advised he could stay. He did, he left, he flew out of here,. h i ffi, I think that is telling. Anyway, for those reasons ... I am eny ing the defenqant's motlon[] When a court denies a motion t suppre s, factuai and credibiliry determinations should not be reversed in the absence of a clEar abuse of the court' s discretion, i. e., unless such ruling is not supparted 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 nouo standard of review. See State vm Hunt, 2009- 1589, p. fi ( La. 12/ 1/ 09), 25 So. 3d 746, 75L It is well- settled that the ruling in Wliranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 LEd. 2d 694 ( 1966), protects an indiv duaPs Fifth Amerrdment privilege during incommunicado interrogation in a police-coc trolled atmosphere. In Miranda, 3 4 U. S. at 444, 86 S. Ct. at 1612, questioning initiated by the law Sup eme enforcement Co rt affocers iEfiined " aYcer a custodiaf person interrogation" as has been taken into i, . or otherwise custody before aeprived a confessior or : be introduc d Eto defendant fi st was dd c+ is freed uf . rr lpazcry ; h n advised st f E is Niir a st r d? r waived those rights, and that the states trtar a ta p rm c t nce, : . n aari w. any si rificant way." Thus, a custodial interrogation may teyond ue reas raabiti oupt hat the r rs, that he .voluntz iia ared inteill ently nt was s ade freely and voluntarily and not under the influence of fear, duress, intimia tion promises. ' menaces, threats, inducements, or La., R.S. 15: 451. La. Code Crim. P. art. 703( D); Hunt, 2009- 1589 at 11, 25 So. 3d at 754. See State v. Patterson, 572 SG. 2d 3f 4, 1150 ( La. , 4pp. 1 Cir. 1990), writ W'here th dPf mdant alleges police misconduct in denied, 577 S. 2d 11 ( La. 1991). reference ta the statement, the state rnust specific liy Tebut these allegations. State v. Montejo,. 2006- 1807, p. 2Q ( La. 5/ 11 13i S. Ct. 656, ll8 L. Ed. 2d 513 ( 2010). 3d 952, 966, 4. 10, cert. denied, _ U. S. _, Since the je eral admissibility of a c nFession is a question for th e trial court its eonclusiars ar th credias ity and weight of the testimony are accorded great weight and wil not be ov rt, rs ed uo less they are not supported by the evidence. See Patterson, 57 Sa. d at :.` f'he trial court must consider the 5G. totality of the circumstances in determinir g whet er a confession is admissible. State v. Hernandez, 432 So. 2d 350, 352 ( La. App. 1 Cir. 1983). Testimony of the interviewing police officer alone may be sufficient to prov a detendant's statements were freely and voluntarily So. 2d 711, 721, whether the State given. writ v, Maten, 20Q4- 17IRr denied, 20Q5- i57 the ruling o n defenda Y` s eviden e duced evidence given at at the trial the hea af 4La, 1! 2?/ 6), rrir titiretc iny 2 . n s s th . the case, State . s r4' i La. App. 1 Cir 3/ 24 05), 899 22 So.2d 544, In determining w s tiorrect, we arenpk e nited to r, . 1hJe may cas sider ali p ertinent hapin; 37 2 So. 2d 1222, i223 n, 2 ( La. 1979). In his brief, the defendant advances several reasons 4vhy the motion to suppress should have been granted. The defendant asserks that r either he nor his father, Travelyn, were able to comprehend interrogation. education and the defendant's rights at the time of the According to the defendant, Travelyn has only a fifth or si h grade is " semi- literate." The defer ant notes that when Travelyn was 8 questioned about unable he asserts of the son' s rights r hes I? f to adequately explafr ith ia words, at un like " t hos Frstanc Funr° coerclon." th Qetective Theriot), Travefyn in the first inteb°iti; that he was " asleep." responded been is ndar+' t° 1: : i] I s t hir. ` h defe,- dant further us r, did s at ki ow the m a; irig cf many ar t t a, s s, c; i cum tances, T'ravelyn would have c? aeen awake for more tyan twenty-four hours before the firs4 inXerview ar c haG c nsumed alcohoi he pri r Also, the sixteen- year-oid aefermdant h c evening. eached oniy the ninth arad bec use of his " defayed educationaf proc ss" a od was faii ng all of his classes. Despite these various assertions, t! ere i suggest that the defendant or is reGk Travely. nothing in the record befor r, ekstand tne defend nt s Miranda warnings, par iculacly the right to rEmair siie t nd, the right to a Pitre testified at the mation to suppress at us o she di attomey. Detective not smell alcohol on the defendant's breath, his pupils were no t dilated, and ' ne was not behaving in any way that would lead her to believe that the defendant was intoxicated. The trial court aslked Detective Pitre if the defendant had groggy, drowsy. or She iven h r any indication that he was sleepy, Ti e, : etec ivE furither rESponded in the respe nded, ".'° negative when asked if the defenda t °x; iG6t c any sis r,s of be; ng impaired by alcohel or drugs, Also, duc-ing her questicar er; afr the d P; ra,, at no iime did he ask f r an attorney or refuse t answer uesiians. Detective Theriot testified at trfiai the defendant and Travelyn understa iat c3 ins tYie d f; his interview ( the frst onterviev r) a? ti`s iMdranda ri hts. At no time during the interview, accor, ing tc the detective, aidd he caserve impairment in any way d from drugs bein or alcohol. Further, a* rio t me did eo he ne siat understand the q: estions asked. Neither appeared to be slee- deprived, and neither ane ever asked for an attomey. When they were initially gaing over +he forrns and Travelyn stated that he was °'asleep," Detectiv Theriot unde stoc d the c rrsnnent to mean Travelyn was sleepy. In any eve t, the detective made cie r thac T av yn was nev r asaeep during the interview an responded in the affirmativ wh en asked f Tra elyn was " wiae awake." s. Travelyn testified at the mct! c n : c su; grade education; form ( the frst Despite the interviewing h Travel y formj, c ef a uvever, wh; r c9ant°s detectives h filked : descript'so at the m to s; h c rade education. oi- Vi erate," the tesYi or y f the a a ": e es ` pj an eleves*t ti at Ey v a t on t hat he had a fifth or si rEn P,ight4 4 or inte°ragati n of Juveniles" szt " ir dic z r h aiess ifiy an the tria, as well as the rights forms in evidence, revealed the defendant was clearly literate, was well aware of what he was doing and and. saying, was at a l . kircaes cQgnizant and alert. Further, Travelyn' s own problems with past arrests and eonvictions indicate his familiarity with the criminal justice system. An indiyidual' s prior experiences with the criminai justice system are relevant to the waiver of rights inquiry because they may show the individual has, in the past, and, perhaps, on numerous occasions, been informed of his constitutional rights self- incrim natio, against officers, See State v. Robertson, 97- 017, enied, 52S U. S. 882, 119 S. Ct. 19.0,. 14,2 both ty law enforcement and } udicial p. E ( La. 3/ 4 98), 712 So. 2d 8, 30, . art. IS5 ( 1998); Green, 6S5 So. 2d at Ed. t. 2d 283 284, Moreover, there is no absolute requir rm n that an attorriey or guardian must be present with a juvenile suspect at the time he maices a statement. Instead a totality of the circumstances standard is used as th juvenile confessions. See State So. 2d 485, 486-490; State So. 2d 592, 604, wrlt v, v. basis f r de'termining the admissibility of Fernandez 5m27 9, Harper, 20Q- 0299, . 1$ ( denied, 2QOa 1921 ( La. 2/ 15/ J), pp. - 10 ( La. 4/ 14/ 98j, 712 La. App. 1 Cir. 9/ 5/ 07), 970 97b SoZd 173. The defendant was read and explained his rights by both his father and e detective;. the defendant initialed these" forms, confirming tliat his` rights were explained to him and that he understood relevant, them. Further, intelligent responses ur by awn th ot bot' t. c]efendar+ As revievv interviews reveals cflherent, such; noth ng in th record indicates the defendant did not ursderstantl Fiis r yht:. Qr that he did not freely and voluntarily waive those rights. The defendant in brief further arg es that ris second < interview ( the interview that is the subject of the instarit matt r wherP he c r fessed to shaoti g the two girls) 10 should have been suppressed because it uvac x a tln r e onse to promises of leriency. According to the defendant, the policE t ld T'r ue!y 2 k y wouid get the defendant some help as long as h cooperated. Fur her, the pc?E e , rQin 5ed he f oe ld not Go to jail if he confessed to the haotings. b At t? gi r a : f tt3 R se o an° d 4 ca t air- Pitre tofd the defendant that his fa he : Man what ( judge] you know about 'to iet d) inte view, etective iElp. The defendarat repiied, o nebady out that shot four people." According to the defendant in brief, this commenc. by him ( about what judge would let him out) could only have been in response to, the po!ice promising him that he would get leniency in order to induce him to confessa ther than the defendanYs self- ser ing estimony at the motion to suppress hearing, there is nothing in the record to suggest he was promised leniency. Decective Pitre testified at trial that the " help" Travelyn wanted for his son was psychiatric heip. The defendant, himself, had been shot in #he head a year before the instant matter and was angry about not having gotten any sympathy or Detective Pitre testified that nothing a deal. was told tc khe emorse over being shot. f ndant about len ency or cutteng At the motion to suppress hearing, whee. Detective Pitre was asked if there were promises made when " dad" was prese t, sh respanded, " fvo. There was [ s c] no promises made ever." Detective Theriot testifi2d at triai tG ere were no promi es made whaksoever for leniency by him c,r D tect;ve. s e'civeaux See State v. Lava{ais, 95- 0320, pp. 7- 8 ( La. 11/ 25/ 96), 685 So. 2d 1048, 1053- 1054, cert. denied, 522 U. S, 825, 118 S. Ct. 85, 139 LoEd. 2d 42' 1997) ( wF 2se defendant, among other inducements, that he w s. ke ar fficer aliege ly prornisin the ld talk to the judge and do whatever he could to help, our supreme court fcund the" camments did not render ±he defendant's confession involuntary); The defendant in brief also argues that his statement in the second interview where he confessed to the shootings) should obtained after he had invoked his right t ave been suppressed because it was si enc2 at the enci of the first interview. The relevant portion of the first interview is r earkhe er?d of i: I1 Father: 3us Boy stop cry;ny catehing his 1 r. iidible) Mosely: Tha" s w 1' or sa a. ja g 1 daAYt !: at k h r I dor"*. have seizures and MosePy: d dar': like gaing t Fath c ri; be: ause he' s going to start stroau hle1. Take him to jail. i: h1 n i v4 hrr s6 i3 i ae"sy ; r shco n: ed, ra. n:, ps* 7 i ra' t nobo y. n"" .. Father: ( Inaudible) Detiveaux: Well this is what yo,' re lo koi g a[ Josh. If you ( Inaudible). We know the gunshots came fr m tha car. df you can' k tell us who shot them... Mosely: I don' t know. ( Inaudible) Det veaux: Okay Theriot: Okay Mosely: What ya`II want me to say s m body else. shot... FaEher: Josh, Jash just shut up. I can go`? According to the defendant, Travel n w4thdrew his son' s consent to answer questions when he toid the detectives, ka ust. bc ak nim and take him to jail. F rtherr the defendant contends, the " sentin er vv s reaffrmed moments later" when Traveiyn told the d fendant to shut up. Wh le Miranda does not requirP that a defendant exercise his right to remain ssler.t by ar:y, p rticutlar phrasing, see State v. Taylor, 2001- 16 8, p. 6 ( La. iJ14/ 03), 838 So, d t29, 739, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L. Ed. 2d 885 ( 2004), v e do nat see how the foll wing -- " Boy st p crying. Just book him man, beca s he' s joing fc start :;atching his seizures and I don' t have no ( Inaudible) o Take him to } ai." ,-. wvas ars invczcation by Traveiy on his son' s behalf to stop speaking. Travefyn sePmed o b, speakong out of concer for i is son' s heabth. Cl arly understanding thar th aL'. tc ci rF en the defendan sh, uld be booked and% taker o jail was. not Tcave yr`s to mak, the dete.:tives likely took these or remarks as signs of exasperation. ReGaii that ln both af the defendant' s in erviews, Travelyn got angry and walked out of the room, Simiiarly, a few seconc s later when Travelyn said " Josh, 7osh just shut ap" it v a was invoking his san' s right to stop speak' rr. s 12 . not at aif clear t the detectives khaf he Up nki! this poi? t, the defendant had been crying fQr some time, h° his s r t " ia t s6, rnay have been nothing u" more than an attempk tc curtail his son's cryanc. shut up because he " very upset. I beli was cryir ve q that' s w ay hauc ht hat ' Detective Theriot testified at trR! * him t he ' toi hen, "[ TravElyn] Nas getting hear;" a: Gan as Yrl shut tpid the deferdant to Travel, up." Further, Detective Theriot t stified that he did not understand TraveYy o' s exf artati n tp " just baok" the defenda7t to that mean the defendant., was d ! Y a : stop su; answering questions.. Notwithstandir g, speculation on what sema ne uvas ihinking, the deteckives did, in fact, stop questioning when Travelyrr to9d he defendant to shu up and then left. According to hia testimony at tria! and the nr9otior ic; su; p; sw n?aring, Detective Theriot sto aed the questiQning, not because Traueiys. ii dee ted, nis son, was to stop answering q! sr but because he esticr was r t " eztir g, ruyvvhcre°' with the initervlew. If the defendant' s right to silence was invoked mcainents ea fier ( by the " take him ta ja l" comment), the defendant suffered no harm from the single statement by Deteckive Detiveaux that followed the alleged invoeatiorq; be ause the defendant confessed to nothing. While it is not clear tha' Travelyn had nvs?k d the defendd t`s yight to s9le ce at the end of the first 'snterview, e re as us iiry ti' vak t he ? i ` o' t, it tls : iear hat: , Y en Getecti4e Pitre uent to talk to the c 2 enda t P4 xn° s bnd i ¬ te vi w, Tra4 dyn had waived th defendarts presence of another detective rigfnt tc sile! i, the defendant an', wheia sh shooting, Travelyn agreed x, to his spok interuizw did son. a; V rn a M1f Travely fo u g, back u D tective Ritre cuts cie of the fne fe dan avas a suspect ira rte the intervievu roam while the Further, it si oula be ,! aked that t no time in either he defendant, hirr2self, ever invoke hos ight o silence or ask for a ! awyer, Before Detective Ritre intervis ved the defendant, on of the Houma PolicE Department detectives informed her tha the defendan had bee Mirandozed already in the first interview, Thus, v hen Detective Pitre sat down to interview the defendant, sh did not Mirandize him again, but cor. frrraed vith the defenciant that he hau indeed been inforrned of h s rights only a fe v hours before 13 VI;°hEn Traveiyn left agair at khe beginning of this interview ( beca.,, Travelyn did shot the girls), son' s right to sii Exc pi nce or not to stop say th or c dt, ad nodded that he had a gun and fen o anyt:! answerinc estt; ana, the cir arns ar. as ir?a iir 3t. vrhere suggest that; he was invoking his y a:oF rti4c r, thes ia no iec ssity to reiterate the Miranda warnings at ach has a f n ir t rrogation. State v. Kimble, 546 So. 2d 834, 840 ( La. App. 1 Cir. 1989), A requirement that the Miranda warnings be repeated before each separate interroyaiiQn. would quickly degenerate 'snto a formalistic ritual. See State v. Harvill, 4 3 Sp, 2d 706, ? 04 ( La. 1983). In Maguire v. United States, 396 F. 2d 327, 331 ( 9th Cir. 1968); cert. denied, 393 U. S. 1099, & 9 S. Ct. 897, 21 L. Ed. 2d 792 ( 1969), the defendantwas properly advised of his Miranda rights three days before his interrogation by another law enforcement officer. Despite a deficient recitation of Miranda rights prior to the latter interrogation, the court held that the proper giving of Miranda rights Yhree days earlier was sufficient to defeat the claim by the defendant that hE had not beer : advised of his Miranda rights. See Kimble, 546 So. 2d at 840- 841, whereupon th ciefendang's admissAOn that h2 received his Miranda rights on September 2, this c;our affirrned the defendant`s convickion despite a technicaliy deficient recitatiQn of Miranda rights that preceded the ri defendant' s confession two days later on Septe the defendant did instead not characterized es . Iri Yiarvil, 403 So. 2d at 7 9, dispute the fa t that h ras preuiaus4y aa fised of hi rights, t ut the taped int rview as sncc nd distinct interrogation sessio which mandated an independent explanation of the Miranda v arnings. The supreme court rejected the"defendant's claim an f f4und thaf aiisenf some si nificant break in the interrogation process, such as a specific r quest fpr assistance of counsel; repetition of the Miranda warn;ngs prior ta the aping f defenuant' s `statement is not reGuired, Accordingiy, the defendant had een clear!y apprised of his rights at the time of the second inte view and at na time dur r y th silence or ask for an s" r teaview did he invake his r ght to attorney. / hole nat disposit ve af the issue befpre us, we note the internal incansistency of the defendant's argumetit regarding Travelyn. The defendant insists that Travelyn is a semi- illiterate who ca not read and unders ood nothing of 14 . what he was defendant talking told being assures us about when regardanc tY e Mor khat Travelyn iz. a w h told the e':e: fiiv s a interpretation of these remarks, ch nings; ai *.he same 'time, the hat he was doing and what he was xaeto} c c h s san and * e hi.* to jail, and n s6, a,:,:° gns ead or the p ss;bility f ny d f r?; ra ts us to knovv that Travelyn shortly thereafter when he told ` is sLn Y. " other da v a meant one thing and one thing oniy -- to exercis2 h s sor' s right for nim to be silent. As the defendant notes in his brief, Travelyn " ciearly and unambiguously withdrevv his consent to the questioning of his son and invoked his son' s right to silence by telling the poiice ko book him and take him to jaif." Finally, the defendant argues in brief that thz eyewitness to the shooting, Davol Martin, testified against the defendant to save himself. Davole had been charged as a principal to the two sYiootings and; according to the defendant, testified to garrer leniency from the State. At the end of his crosS- xamination, Qavole responded in the affirmative when asked, " Are you hoping that the either to a lower charge or tf er dismiss it dlsc istriet Attorney will drop your charge ft r tY2is riai is over?" Despite any sentiments regarding ieniency Davole rr ay hava harb red, shortly before oper mg statements in resporise to the defendank' s notion ta reveal the deal, the prosecutor made clear to the tria! eourt that khere had been no romises made to any of the co- defendants on any case. Further, the foElowing collaq y took piace with the prosecutor when Da ole testified at trial: Q. All Now, Davole, as we sit here teday you are actually still right, charged in thls case are' t yuu% A. Yes, sir. Q. And you a e facing th sam c that Joshua Moseiy .is facing ar n' t you? A. Yes, sir. Q: Have I or anybody from the L1iStrict A o ney' s any -- anything -- A. No, sir. Q. -- in connection with your testimoiny here today? 15 ffice prom sed you A. No, sir. In sum, e J of thoroughly infAr rights agree we il s explicit9y N his as he iif r ri ahts, ibr,pd; c;sti e a f tnF dr' s i rsaBie d! s a ci i:hrc+ aeh r her 384 So. 2d 425, 424- 428 ( La. 298a. ' 9: is c. a r d s rs rit rliqfntiy w ived his n rights. e° v9 rF= deGeive, defendant was intimidated, coerced, f tid The defendant had been a Ls, u!. v c rds. i 5e tat v. Brown, he recora- to suggest the t ireatened, c r dnquced in any way Yhat woufd have led him to waive his. right o. r ma9 s lerjt for any reason tither thar as a fun tion of his free will. See. Robertson, 97- 01e7 at ?_, 712 Sg. 2d at 30. Acc rdfngly, 6 we find no legal error or abuse of dis:, retion by ria! ourt in denying the defendanYs sh motion to suppress. This assignment of error is without merit, '. ASSIGNMENTS OF ERR R N05. 2 AND 3 In these reiated assignment5 of erroro khe' def` ndant argues, respectively, that tne e Louisiana Constitution provision for non- nanirrroias j ry verdict vialates the F urteenth Amendment's Equal Protection Clause of the Unit d Stat s Constitution; and tne ten to two non- unanimous jur verdicts ora oth counts a this case viola es his " righk to a ; ury" under Sixth ihe Specificai r, Fourt an enth 4me dr ec YS ' t centes the defendant by motivated and express ds t and overe at t ena.: sYa t t nite 5tates t uf La. Const. art. s; crdminat esir2 $ o a d Constitution. I, 1? A was as had a racialEy discrirr?inatory irnpact si ce its adoptior:, It is well- settled that a consci utic al chaFreroge may not be considered by an appellate court unless it was properfy pleaded and raised in the triaf court below. A party must the raise unconstitutiona9ity' or the ti ial specially pleaded, and the grounds particularized. 718- 719. v. v, he unconstikutionaliry must be utilirairig th basos of uriconstitut anality r USt be Hatton, 2 J7- 37 o pp. :- 14 ( La. 7/ 1/&), 985 5o. 2d 7( 9, In the instant case, the defendant fa% ta raise his challenge t fed Constitutiar Ibefore thi See State c A ticle I, § L uisiar a 17( A) n the trial court. Aec rdingly, the issue is not properly court. o Nevertheless, this argument crime 14: 27( D){ 1( Code of regarding emp t of fl e 1: a n we addo° s e st d r L a i, 3( C) 7. Criminal Procedure bas g c) articie '$ r° rre t' r, a. 2* ress this c urt°s position that G. unter s r sf ali + r d r e ate g v rdict n'Ir cs as aira no- af- r e? a rison r r a 4 le. " d at eoeuer commits the h r 9abor. icle I,. :;'( A La, R. S. an t_o isiana irs c:ases where punishment is necessarily at hard labor, the case shall be tried, by a jury composed f twelve jur ss, ten of whom must concur to render a ver ict. l nde bath` state and federal jurisprudence, a criminal conviction by a less than unanim c s jus y does ot violate a defendant's rigfit to trial by jury specified by the Sixth AmEnd ri nt nd snade applicable to the states by he Fourteenth Amendment. See Apod ca v. Oregon,` 406 U. S. 404, 92 S.Ct. 1629, 32 L. Ed. 2d 19%2); 184 State rr. Shanks, 97- 1885, pp. 15- 16 ( Belgard 41G So. 2 72G, 1982); State va 715 Sa2d 157, 1b4- 165. ir. 6/ 29/ 9); La. App, 1 726 ( La. The defendant suggests that since subsequer t .legal developments cali Apodaca into serious question, this courk should find L uisla a; by e ension, Article 782, which is esserltially tii provision) unconstikutional. of McDonald 2010). v. In support of th s City of Chieago nstitution articfe c, ciificatian I, § ll( ( and Aj f the constitutiana ssertiura, the dePendant c,tes the decision i 130 S. Ct. 3020, 177 L. Ed. 2d 894 III., __, J. S. ';- The defenaant's reliance on khis ; urispruden e is misplaced. The McDonald Court, while holding that the Second Arr r dmer"t right to keep and bear arms is fiuliy applec ble tc fihe States through th established jurisprudence Fc3 r eent h h ldir g dr e t, di nothi ag ta aite the w i!- 5^ the e Proe ss Clause aes s rk r auire unanimous jury verdicts in state craminaR try ls. See McDof ald, 130 a.Ct. at 3035 n. i. Th McDonald Court specifieally sta e Xhat, Ithaugh the Si cth Amendment requires unanimous juty verdicts in federaf criminal t ials, it i3 es not requfre unanimous jury verdicts in state criminal trials. Bishop, 2010- 1840, pp. 10- 11 See McDonalcl, 13 ( La, App. l Oregon' s non- unaninous jury verdict provision ohnson v. ir, : S. C;. at 3035 n. 14; Stat r Q/ 11), 68 5o.3d 1197, 1205, writ f: fts stace constitutian was ehaliEnged in Apodaca. Louisiana, 406 U. S. 35E, 92 S. Ct. 1629, 3 '. Ea d 152 ( 1972) decided witn Apodaca, upheld Louisiana' s then- existing constitutional and sCatutory provisions allowing nine-to-three jury vePdicts. 37 denied, 2011- 1530 ( La. 12/ 16/ 11), 76 rhe defendant's argument has been So. 3d Y243, repeatedly rejected by this court. See State vo Smith, 2306- Q820, y p. 23- 24 ( La. App. 1 1 Cir. 12/ 28/ 06), 952 So. 2d i; ' 5° i, . 352; State 156- 157, v. writ Caples, 2005- 2517, rit en'sed, i .. p, '- f? T), denied, 2Q06- 246 (. / 2 0- Q2] i { n;. y 5. 2 a. 964 So. 2d 9/ 28!), i. Cir. 6/ 9/ 4fa), 338 St. 2d 147, 684. The defendant also asserts in his brief thac Louis;ana's nan- unanimQUS jury verdick scheme violates equal protection because rac+ discri nination was a substantial factor al behind the enactment of the constitutioraal pr visian. Lauisiana adopted its nonuna imity rule on its 1898 constitutional convenit c, n: conventior+ desi.gned, according to the defendant, " to produce a constitution that would entre ch white power once and for all." Our supreme court ira State v. Berkrand,; 2Q08- 2215 (.La. 3/ ll/09), 6 So. 3d 738, addressed this issue over four years ago::" Finally; deferidants argue that the use of nonunanimous verdicts have an insidious racia! component, aliow minority viewpoints to be ignored, and is likely to chill participation by the precese groups whose exclusion the Constitution has proscribed." Bertrand, 200- 22i5 at b, Court found that a non- unanimous tweive- p rsan iury So. 3d at 742. The Bertrand erdict is constitutional and that Article 782 does not violate the Fifth, Sixth and Fou teer th Amendmentsoz Regarding the equal protection argument that such verd ts r ve ar i sidious raCcal compon nt, the Bertrand Gourt noted that the issue had of the United States Supreme Court n ir ady podaca, n de icied as meriti ss by a majority Bertrarrd, 2008- 2215 at 7-, 6 Sc. 3d at 743. Thus, while Apodaca was a piuraiity ratti r than a majorl" y cfecision, the United r States Supreme ourt, s well as och courts; iias cited or discussed the opinion various times since its issuance and, on each' of t1iese occasir ns, it is apparent that its holding as to non- unanimous jury verdicts represents well- seitle' faw. Bertrand, 2008-2215 at 6- 8, 6 So. 3d at 742- 743. ' Thus, Louisiana Constitution article I, § 17( A) ( or La. Code Crfm. P. Z In Berlrand, the supreme court only conside ed Articl 7$ 2 while the defen ant In the instanE case 17( A} itse{f. We find this approacn to tracks the language of Hrticle I, § 17( Aj. e a distiinction withoi t a difference, because attacks Article I, § Article 782 Closely 18 . art. 782( A)) is constitutional not rights. unconstitu io aal r, n t i, vialation of the defendant's See State v, liammonei 2 i- 1559, pp, 3- 4 ( La. App. 1 Cir. 3/ 25/ 13), 115 So: 3¢ 513, 5I4- 515, Thes a6 d, There' t r writ d r e, if.r3 r t r,i r assign; i ents oP err r t' ¢.. 3 ¢ 0 7 ; La. 1?! 8/ k3), 125 Se. 3d 442. Eio ASSIGNNIENT O' ER.it R $( 10 4 In his fourth assignment of error, the deiendant argues the trial court erred in imposing excessive sentences. The Eighth Amendment to the United States Cons itution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel er xcessive punishment. Althcugh a sentence falls within statutory limits, it may be exces ive. State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is eonsldered ''; onstitutionally excessive if it is grossly disproportionate to the seriousness of the affe'nse or is nothing more than a purpose{ess and needless infliction of pain , and , ng. A sentence is c rsidered grossfy disproportionate if, when the crim and p nishm nt are considered in light of the harm done to society, it shocks the sense of justoce. State v. Andirews, 94- 0842, pp. 89 { La. App. 1 Cir. 5/ 5/ 95), 655 So. 2tl 448, 454 " fhe triaf eourt nas great discretion ! n imposing a sentence within the statutory limits, ar a s c t a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion, So. 2d 1241, 1245 ( La. App. 1 Cir. 1988. See State v. Holts, 525 Louislana Code of Criminal Procedure a ticle 894. 1 sets forth the factors for the trial court tQ ca eside when imposing sentence. While the entire checkiist of Articfe 894, 1 need not be recite, the recor must re lect the trial court adequately considered the criterla: State v. Bro vn, 2002- 2231, p. 4 { La. App. 1 Cir. 5J9/ 03), 849 So. 2d 566, 569, The articulatiar of the factual b sis for se tence is the goal oP Article 894. 1, r ot rigid or mechanicaf compliance with its pruvisions Utrhere the record clearly shows an adequate factua! basis for the sentence imposed, remand s unraecessary even where there has not been full compliance with Article 894. i. State v. Lanclosy 419 So. 2d 475, 478 ( La. 1982). The trial judge should review the defendanE's personal history, his prior criminal record, the seriousness of the offense, the likelinood that he will commit another 19 crime, his and confinement. Se2 State review of a sentence, v. e r reie a?;c yue the d' C 4, , i whetl 2r ae oth i F r s ether. nte:` facing defendant xh r than Q51- P052 ( La. 1481). On appellate ti e tria cc ur rrii h't have i. a; 1( l% 8) ¢ % tg 4f Thomas, 98- 1A44, pp, 1- 2 In the instant matter, th c rr c`ianal senroc s fih; abQ!; 7ones, 348 Sc v. sentencing d; sceetic n, not State f pot ntial buseq its broad een r!nore appropriate. o, 2d 49r 50 ( per euriam). max6mum sentence of fifiy years at hard labor ( one- hundred years with consecutive sentences), was sentenced to fiorty years at hard labor. See La, R. S. 14: 27( D)( 1)( a) & La. R. 14; 0( C)( 2). . The.defendant argues in his brief that the trial court .faiied, fo-:gi e ad quate weight to certain rriitiyat g circumstances such as his youthr that he had no ignifyant history of criminai activitry; the act was not premeditated; he had unresofved iSsues regarding his own experience with being shot; and the gunshot Gvound to his head ieft him suffering from uncantrolled seizures fhat may have affected his mental tuncti nir g: . We note initially there was. no evidence attriai sfiabiishing the defendant s ffered from uncontrolled ( or any) seizures, or that as a res lt of these seizures his mental fun tioning was affected. Moreaver, i hile the zriai enurt did not ref r to Articie 894. 1 by name, it is clear it carefully con idered a gra ua n ardd mltigating circur stances. Prior to sentencing, the trial court disciassed- his defendan head injury from being queskioned education, a rriaiy; i9 the , shot t se def lrag ncia*, a aout has hisiory, wherein the arrang ents nrith ; s gr ndmQther, his ci cs Qf the sh;a kir gs in the instant matter; and why he shot the girls. FoElowing tnis colloquy the triai cau E s ated in pert nert part: This is a very a youthful troublirag offender,, case, t reallyi. This es, on the one i and it`s Qn tne u'cher: narad,. st' s an extremely danger us cause of the actions of are placed ir ad ger situation where all citizens this individual. The minimam, under uc faw ¢ the minimu is ten years on each eount. That's twenty years aninimusn, mi imum, minimum. I heard the evidence in two trials. I've been zhinking abe t fih s sentence for many . months, I° researched what other courts have done in similar cases. I`ve ve c nsidered the defendant's youth, his status in iife. This is a tough one for the Court. I got to tefl you, this is a very tough vne. Fle was offered a jail a prison sentence at a pretrial conference that he rejected. No matter what I doo it ain' t going to be good for tnis your+ man. It's going to be a g tough sentence. It's a tough one. 2Q t Considering ' ne these violent, sense ess, and was sentenced consecutiv ¬ court. tc l ss ar ifty-y^ ¬ c maxim a r v}es us:u! et. r thara ha' * Accordingly, the tt cut rial ri Ny senteraE: es arcvc ke ur rnaxi in se te ar s s a_ ¢, v,r Bi a a h nd the fact ti e def ndant ri nes, se J circumstanc s, the nafiure of fi t t n r o h alRuwabl at a e c;` ¬ c ial nder the ! w ( two scret's s i y the trial c. urt are o not grossly dispropartios ate o the severiry of the offenses an i, therefore, are noY unconstitutionaiiy excessive; The trial court did not err in denyinG the moeion to reconsider sentence, This assignment of error is wEith ut m ri, CONVTCTIOPfS AND SENTENCES AFFTRMEDa 21

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