STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 07-568
STATE OF LOUISIANA
VERSUS
GREGORY ANDERSON COUTEE
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 281725 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Billy Howard Ezell, Judges.
AFFIRMED.
James C. Downs District Attorney - Ninth Judicial District Court 701 Murray Street Alexandria, LA 71301 (318) 473-6650 Counsel for Plaintiff/Appellee: State of Louisiana Monique Yvette Metoyer Attorney at Law 2729 Overton Street Alexandria, LA 71301 (318) 473-6650 Counsel for Plaintiff/Appellee: State of Louisiana
Edward Kelly Bauman Louisiana Appellate Project P. O. Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 Counsel for Defendant/Appellant: Gregory Anderson Coutee
Gregory Anderson Coutee Louisiana State Penitentiary Hickory 2 Angola, LA 70712 EZELL, JUDGE.
On March 22, 2006, the Defendant, Gregory Anderson Coutee, was originally
charged with armed robbery. The bill of information was amended on June 21, 2006,
charging the Defendant with first degree robbery, a violation of La.R.S. 14:64.1. A
jury trial began on October 17, 2006, and the jury returned a guilty verdict on October
18, 2006. The Defendant was sentenced on October 27, 2006, to serve forty years at
hard labor without benefit of probation, parole, or suspension of sentence. The
Defendant is now before this court on appeal, asserting that the evidence is
insufficient to convict him of first degree robbery, and that the trial court erred in
denying his motion to suppress.
FACTS
On January 23, 2006, the Defendant entered the Lexington Self Storage and
robbed the owner, David Paulk, who was working that day. The Defendant was
found that same day at the residence of Nicole Howard and was subsequently arrested
on outstanding warrants. After the Defendant was read his Miranda rights, he
confessed to the robbery and informed officers where the stolen items, a wallet and
checkbook, could be found in the residence. Ms. Howard gave her consent to search
the residence, and the stolen items were retrieved.
ASSIGNMENT OF ERROR
By this assignment of error, the Defendant argues that the evidence was
insufficient to convict him of first degree robbery. The analysis for a claim of
insufficient evidence is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62
1 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
First degree robbery is defined in La.R.S. 14:64.1, which states, in pertinent
part:
A. First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.
Thus, the State had the burden of showing that: 1. an object was taken; 2. the object
had value; 3. the object belonged to another or was in the immediate control of
another; 4. force or intimidation was used to take the object; and, 5. the victim
believed the offender was armed with a dangerous weapon. In the instant case, the
Defendant questions whether the State proved the element of force or intimidation to
commit the taking while leading Mr. Paulk to believe he was armed with a dangerous
weapon.
The victim, David Paulk, testified that he was working at his business,
Lexington Self Storage, on the morning of January 23, 2006. He explained that
around 10:00 a.m., the Defendant entered the business and inquired about renting a
storage space. Mr. Paulk informed the Defendant that he did not have any of the size
requested available. The Defendant left the building, and Mr. Paulk assumed that the
Defendant had driven out the parking lot. Instead, the Defendant drove back behind
2 the storage buildings and parked his vehicle between the buildings, out of Mr. Paulk’s
sight.
Next, the Defendant entered the business again and asked Mr. Paulk to loan
him twenty dollars. Mr. Paulk refused, and the Defendant asked him again. When
Mr. Paulk refused the second time, Mr. Paulk testified that the Defendant jumped at
him, grabbed him, pulled him up out of his chair and threw him in a storage closet.
Mr. Paulk was fearful from the moment the Defendant first grabbed him because the
Defendant was a much larger man and was a stranger to him. Mr. Paulk testified that
he was 5'6" tall and weighed 170 pounds, whereas he believed the Defendant to be
about 6'2" tall and weighing 240 pounds. At the time the Defendant was booked, he
measured 6'0" tall and 245 pounds.
According to Mr. Paulk, the storage room was very well lit. Mr. Paulk hit the
wall in the storage room with enough force to bust a hole in the sheetrock.
Photographs of the storage closet and damage to the sheetrock were submitted into
evidence as exhibits 6, 7, 11, 28, and 29. The Defendant subsequently got Mr. Paulk
down on the floor and tied Mr. Paulk’s hands behind his back with speaker wire he
pulled off an old computer in the storage room. Mr. Paulk was able to break loose
and the Defendant pulled the speaker wire off another computer and tied Mr. Paulk
up again. As the men continued to fight in the closet, the Defendant got Mr. Paulk
down on the floor and tied him up again with a piece of electrical wiring. The
Defendant was on Mr. Paulk’s back with Mr. Paulk’s face down and his head against
the floor. At that time, Mr. Paulk saw the Defendant reach behind himself and pull
something from his waistband or a pocket. At that time, Mr. Paulk believed, without
a doubt, that the Defendant was armed with a weapon. Mr. Paulk could not identify
the object, only that it was brown colored. He thought the object was either the butt
3 of a gun or a knife. Mr. Paulk was unable to look up and exactly identify the object.
Mr. Paulk stated that the Defendant did not touch him with the object, such as
touching him with the tip of a gun or holding a knife against his neck. Additionally,
nothing was demanded of Mr. Paulk during the time the Defendant was holding the
object and the Defendant never said that he had a weapon while they were in the
storage room.
Mr. Paulk stated that he believed that the Defendant was going to kill him, so
he decided to stop fighting in hopes that the Defendant would take what he wanted
and leave the building. He was not sure what the Defendant did with the object, but
speculated that the Defendant put it back in his pocket or waistband.
Mr. Paulk testified that, at that time, the Defendant took his wallet and
checkbook from his pocket and some cash that was on his desk. Next, the Defendant
told Mr. Paulk that he was getting his gun and was going to kill him, then ran out of
the door. Mr. Paulk believed at that time that the Defendant had the power to execute
the threat. Mr. Paulk explained that the Defendant went back behind the building, got
in his truck, and drove away. After freeing himself, Mr. Paulk observed the direction
in which the Defendant was driving and called 911 and reported the crime.
Corporal Kenneth Rachal of the Alexandria Police Department was dispatched
to the crime scene and interviewed Mr. Paulk. Upon learning that the assailant left
the scene in a brown Suburban and the direction it was headed, Corporal Rachal
instructed Officer Ducote to see if he could locate the vehicle. Corporal Rachal
joined Officer Ducote after locating the vehicle at a residence of Nicole Howard and
the officers learned that the vehicle belonged to the Defendant and that the Defendant
was inside the residence. The Defendant came out of the house, was informed of his
Miranda rights, arrested for outstanding warrants, and placed in the back of a police
4 unit. At that time, the Defendant told the officers where the stolen items were
located. After officers were given consent by Ms. Howard to search the residence,
the items were retrieved from the exact locations as reported by the Defendant.
Corporal Rachal testified that, when searching the residence for the stolen items, he
did not look for a weapon at that time.
Officer Douglas Prestridge of the Alexandria Police Department testified that
he was dispatched to the scene of the crime around 10:00 a.m. Officer Prestridge did
not find a weapon at the crime scene. Detective Stephen Constantino testified that
the Defendant’s vehicle was thoroughly searched and a weapon was not found.
Officer James David King was present when the Defendant disrobed at the hospital,
and he testified that no weapon was found.
In his brief to this court, the Defendant maintains that under a traditional strict
interpretation of this statute, the jury could not have concluded beyond a reasonable
doubt that the Defendant used force or intimidation to commit the taking while
leading the victim to believe he was armed with a dangerous weapon. The Defendant
explains that the statute makes no mention of the use of force or intimidation to retain
the property or effect escape. In support of his argument, the Defendant refers this
court to State v. Fortune, 608 So.2d 148 (La.1992). In Fortune, the court provided
the following interpretation of the first degree robbery statute, La.R.S. 14:64.1:
The statute has objective and subjective components. It requires the state to prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon, and that the victim’s belief was objectively reasonable under the circumstances. The statute thus excludes unreasonable panic reactions by the victim but otherwise allows the victim’s subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery in violation of La.R.S. 14:65. Cf. State v. Byrd, 385 So.2d 248 (La.1980). To this extent, La.R.S. 14:64.1 differs from other robbery statutes in which the threat of force alone constitutes a violation of the statute despite its failure to place an atypical victim in actual fear. See Commonwealth v. Mays, 248 Pa.Super. 318, 375 A.2d 116 (1977); State
5 v. Birch, 479 N.W.2d 284 (Iowa 1991).
Id. at 149.
In the instant case, the Defendant argues that Mr. Paulk only stated that the
Defendant said he had a gun as he was leaving and that Mr. Paulk was already tied
up and his possessions taken. The Defendant concludes that because there was no
mention of a weapon, nor was one alluded to at the time of the taking, his conviction
should be reversed, or this court should enter a conviction for simple robbery. Lastly,
the Defendant complains that Mr. Paulk never identified the Defendant at trial as the
individual who assaulted him and stole his wallet and checkbook.
The court finds, using the analysis set forth in Fortune, the evidence in the
record clearly supports the jury’s verdict of first degree robbery. Mr. Paulk’s
testimony demonstrated the subjective belief that the Defendant was armed with a
dangerous weapon at the time Mr. Paulk’s possessions were taken. First, the
Defendant was extremely physical with Mr. Paulk, smashing him into a wall and
tying his hands behind his back several times. Then, during the time of this physical
altercation with the Defendant, a man much larger than Mr. Paulk, Mr. Paulk saw the
Defendant remove from his back pocket or waistband a brown object which could
have been the butt of a gun or a knife.
Further, the objective components of the crime also support Mr. Paulk’s belief
that the Defendant was armed with a dangerous weapon. Considering Mr. Paulk’s
position, face down on the floor with the Defendant on his back at the time the
Defendant pulled out the object seen by Mr. Paulk, one could conclude it was
reasonable for him to believe that the object he saw was a possible weapon. Mr.
Paulk expressed his fear of the Defendant from the outset of the crime and, as
mentioned above, the Defendant was extremely physical with Mr. Paulk and the
6 Defendant was much larger than he. Considering same, we find that these facts
exclude any possibility that Mr. Paulk experienced an unreasonable panic reaction as
described in Fortune with regard to his belief that the Defendant was armed with a
dangerous weapon.
Next, the Defendant complains that Mr. Paulk never identified the Defendant
at trial as the individual who assaulted him and stole his wallet and checkbook. The
record confirms that Mr. Paulk did not identify the Defendant at trial. Mr. Paulk did,
however, identify the Defendant in a photograph taken at Ms. Howard’s residence on
the day of the crime when shown the photograph at trial. Mr. Paulk also identified
the Defendant’s getaway vehicle in a photograph. Additionally, Officer Rachal
identified the Defendant in the courtroom as the person who told him where the
wallet and checkbook were located. Further, Sergeant Gleason, the officer that placed
the Defendant in handcuffs at the time of his arrest, identified the Defendant in the
courtroom as the same person he had arrested that day. Considering Mr. Paulk’s
identification of the Defendant in the photograph submitted into evidence, as well as
the identification of the Defendant by the officers involved in the investigation, we
find that the identification of the Defendant as Mr. Paulk’s assailant was sufficiently
proven at trial.
SUPPLEMENTAL ASSIGNMENT OF ERROR AND PRO SE
SUPPLEMENTAL ASSIGNMENTS OF ERROR NUMBER TWO AND
THREE
Counsel for the Defendant filed a supplement brief setting forth a supplemental
assignment of error. Additionally, the Defendant filed, pro se, a supplemental brief
alleging the same assignment of error in supplemental assignments of error number
two and three.
7 Counsel for the Defendant argues that the trial court erred in denying his
motion to suppress the Defendant’s statement wherein he told officers where to locate
Mr. Paulk’s wallet and checkbook inside Ms. Howard’s residence. The Defendant,
pro se, asserts that his statement was not given freely and voluntarily because he was
unable to understand his rights in his intoxicated condition. Further, the Defendant
maintains that he was not properly advised of his Miranda rights because he was in
a state of incapacitation.
In his motion to suppress filed on June 12, 2006, the Defendant asserted to the
trial court that he was visibly sick and ill, and after being arrested, he had to be rushed
to the emergency room. The Defendant maintained that he “was in a sick state of
drug substance abuse state of mental illness and did not know what he was doing or
saying due to his being sick for drugs.” [sic]. Accordingly, the Defendant maintained
that the evidence obtained as a result of questions the Defendant answered following
his arrest is fruit of the poisonous tree. The Defendant averred that he was not in his
right state of mind and could not give voluntary consent to be questioned. Further,
the Defendant complained that he was arrested for a non-related violation, and
therefore, the officers did not have probable cause to search Ms. Howard’s residence.
The Defendant concludes that the officers found the robbery evidence through
improper questioning of the Defendant and the illegal search of Ms. Howard’s
residence without probable cause or proper consent.
The trial court denied the Defendant’s motion without a hearing on June 15,
2006. In its handwritten reason for denying the motion, the trial court stated, “Motion
denied; the motion is so grammatically incorrect that it lacks merit on its face.”
A second motion to suppress was filed by the Defendant on June 26, 2006, and
a contradictory hearing was held on August 28, 2006. In denying the Defendant’s
8 motion, the trial court stated:
I find that the statements that he made to Officer Rachal and Gleason were free and voluntary. The evidence is that there was a robbery reported, that they had information to believe that he may have been the defendant and they knew of the approximate location where they could find him. They went to that location. Officer Rachal said that he asked him some questions -- well, he advised him of his rights. That at the time that he was discussing his rights with him and the evidence about this crime, that he did not appear to be in any distress whatsoever, that he understood the rights, he did not appear to be under the influence of drugs, that he made his statement, that he consented freely and voluntarily. And it was only after he was placed in the police car that he complained of chest pains. That was after the statements were made. I have no evidence before me today to show that he had recently ingested crack cocaine. And even if he had ingested crack cocaine, the law says, “Likewise, intoxication does not vitiate a confession unless it is to the degree of nullifying the accused’s comprehension and renders him unconscious of the consequences of what he is saying.” State v. Fugler, which is 721 So.2d 1, State v. Ouzts, 777 So.2d 1286, State v. Toney, 796 So.2d 1, and State v. Barthe, 806 So.2d 53. And there’s other cases that are listed. I’m not going to cite all those. But I don’t believe that there was any intoxication to the degree to nullify his comprehension or render him unconscious. Obviously, that was not present. I believe that he knew what was going on, he was responsive to the questions, he answered their questions and only after answering those questions and being arrested on the charge did he complain about chest pains. So -- and I don’t know if that was a valid complaint or not about whether or not he had chest pains -- so I am going to order that the motion to suppress be denied.
In his brief to this court, the Defendant asserts that he was taken to the hospital
immediately after giving his statement due to complaints of chest pains and his
admission of having just smoked crack cocaine. According to the Defendant, he was
unable to sign his advice of rights form at 10:45 a.m. Further, the Defendant refers
this court to the hospital discharge summary which allegedly states that the
Defendant’s hands and fingers appeared to be sooty and burned and his lips blistered
from smoking crack cocaine. The Defendant asserts that he was given Ativan and
Morphine until his condition improved and that he was diagnosed with
rhabdomyolysis secondary to cocaine. In his pro se brief to this court, the Defendant
complains that the trial court erred because it chose to ignore the medical reports and
9 findings of the treating physician which he maintains clearly show that he had
ingested a large quantity of crack cocaine. The Defendant also contends that greater
weight should have been given to his medical records than to the testimony of the
“admission worker/intake officer’s” comments.
With regard to the advice of rights form, the document reflects the signatures
of Officer Rachal and Sergeant Gleason as witnesses and indicates that the Defendant
was unable to sign, but gave his verbal understanding of his rights. At the hearing,
Detective Darrell Thiels testified that he was dispatched to the location where the
Defendant was apprehended. Detective Thiels stated that the Defendant was unable
to sign the advice of rights form because he was at the hospital at the time the form
was completed. Detective Thiels explained that the advice of rights form, as well as
the booking sheet and felony bond sheet, were filled out as they are in all normal
arrests and they were presented to the booking officer so the Defendant could be
booked. Thus, Detective Thiel’s testimony suggests that the lack of the Defendant’s
signature was due to his absence, not because he did not understand his rights.
Further, Detective Thiels stated that he had the chance to speak to the
Defendant before he went to the hospital and the Defendant did not appear
disoriented or to be under the influence of drugs or alcohol. Further, the Defendant
appeared to be able to understand everything that was going on. Detective Thiels also
testified that the Defendant was sweating profusely but did not indicate to any of the
officers that he had used drugs or alcohol. On cross-examination, Detective Thiels
stated that in his seventeen years of being on the force, he would recognize if
someone was on crack cocaine and that the Defendant did not appear to be on crack
cocaine. Detective Thiels attributed the Defendant’s sweating to the unseasonably
warm temperature and because the Defendant was very nervous.
10 Officers Rachal and Gleason also testified at the hearing regarding the
Defendant’s mental orientation at the time of his statement. Officer Rachal stated that
he verbally advised the Defendant of his rights prior to putting him in the police unit,
but he did not have an advice of rights form with him at that time. In Officer
Rachal’s opinion, he believed that the Defendant appeared to understand his rights,
and based on his knowledge, training, and experience, the Defendant did not appear
to be under the influence of alcohol or drugs. Officer Rachal stated that he has
arrested people under the influence of crack cocaine and other illegal narcotics and
would recognize a person disoriented because of drugs. The Defendant was able to
coherently convey his thoughts to the officers, speak in good English, and in
complete sentences and his words were not slurred. The Defendant did not appear
to be in any physical duress. Officer Rachal did admit, however, that the Defendant
appeared nervous from the officers’ presence and his wanting to know why the
officers were there and the source of the problem. The Defendant was also sweating
which Officer Rachal attributed to nervousness.
Officer Rachal also testified that, prior to reading the Defendant his rights, the
Defendant wanted to say something. At that time, Officer Rachal stopped the
Defendant and told him that the officers had to advise him of his rights first before
he could say anything. After the Defendant was advised of his rights, he was asked
if he wanted to make a statement which is when the Defendant told officers where the
items were located in the residence. At no time did the Defendant tell Officer Rachal
that he did not want to make a statement or invoke his right to counsel. Additionally,
Officer Rachal stated that he did not threaten the Defendant in any way or promise
him anything to induce his statement. According to Officer Rachal, the Defendant
made his statement freely and voluntarily. Lastly, Officer Rachal testified that, prior
11 to giving his statement, the Defendant said nothing about being on crack or that he
felt he was having a heart attack, nor did the Defendant complain of having chest pain
before he was Mirandized. The Defendant did not tell Officer Rachal that he had
ingested crack cocaine, nor did Officer Rachal ask the Defendant if he had been
smoking crack cocaine. Officer Rachal estimated that the Defendant began
complaining of chest pain fifteen to twenty minutes after he sat in the police unit.
Officer Gleason testified that the Defendant did not appear to be in any
physical duress when he was approached on the porch of the residence. Also, Officer
Gleason was standing next to Officer Rachal when the Defendant was verbally
Mirandized by Officer Rachal, and the Defendant did not appear to be in any physical
duress at that time. In Officer Gleason’s opinion, based on his knowledge, training,
and experience, the Defendant appeared to understand his rights and did not appear
to be under the influence of any alcohol or drugs, nor was he disoriented. The
Defendant was able to respond in a manner that the officers could understand. Based
on what Officer Gleason witnessed, the Defendant appeared to make his statement
freely and voluntarily.
Officer Gleason testified further that the Defendant did not appear nervous at
first, but started sweating once he was put in the back of Officer Gleason’s unit to
secure him. He did not appear to have any health problems prior to the time Officer
Gleason placed the Defendant in his unit. When the Defendant started to appear
distressed, Officer Gleason got the Defendant out of the vehicle and removed the
handcuffs securing his hands behind his back. Officer Gleason felt that the stress put
on the Defendant with his arms behind his back may have added to his discomfort.
The Defendant was then complaining of chest pain, but he did not tell the officers that
he had smoked crack before their arrival.
12 To prove that the Defendant was not coherent or lucid at the time of his
confession, the Defendant’s medical records from L.S.U. Huey P. Long Charity
Hospital, where he was admitted following his arrest, were submitted into evidence.
The trial court reviewed the medical records, and defense counsel directed the court
to the pertinent pages pertaining to the Defendant’s mental condition during his stay.
Next, as part of the Defendant’s argument, he maintained that his statement was made
under physical and mental duress because he had ingested crack cocaine. The trial
court asked for evidence that the Defendant had ingested cocaine. The Defendant
referred the trial court to the medical records. The trial court asked defense counsel
to show him one page that supported the Defendant’s argument and was unable to do
so other than references made to traces of crack cocaine and other illegal substances
in the Defendant’s urine. Thus, other than the Defendant’s own statement to defense
counsel and/or the hospital that he had ingested cocaine prior to being questioned and
the medical records submitted, the Defendant offered no other evidence at the hearing
that the Defendant’s cocaine use interfered with the understanding of his rights and
his subsequent confession. The Defendant did not testify at the hearing that he used
cocaine prior to making his statement or, as a result of same, that he was incoherent
at the time of his confession.
A review of the Defendant’s medical records indicates that he was admitted to
the emergency room and seen by a triage nurse at 1:01 p.m. with the chief complaint
of chest pain, sudden onset, after smoking crack that morning. He also complained
of a burn to his right middle finger from a crack pipe. The triage nurse noted that the
Defendant was alert and in no acute distress, his breathing pattern was normal, his
skin was dry, pink, and warm, and he was awake, alert, and oriented to person, place,
and time. The Defendant was described as calm and cooperative.
13 At 1:06 p.m., Dr. William Clark examined the Defendant. The Defendant
reported to Dr. Clark that the burns to his finger were from chronic crack use. Dr.
Clark’s examination revealed no significant abnormality in any of his body systems,
including his neurological functioning. Dr. Clark reported that the Defendant was in
no acute change from his baseline condition, appearance, and health, and was non-
toxic and in no apparent distress. The Defendant’s cranial nerves were intact, he was
active neurologically, had no extremity weakness, ambulated without difficulty, and
his mental status was baseline for his age, gender, and conditions. The Defendant had
no sensory deficits and was awake, alert, and oriented as to person, place, and time.
A patient rights/advance directive acknowledgment statement was given to the
Defendant by the admit clerk who advised the Defendant of his patient rights and
responsibilities. The Defendant acknowledged that he had received the information
by signing and dating the top portion of the form. The bottom portion of the form
was to be completed by the Defendant’s admitting nurse who indicated that the
Defendant was falling asleep during the interview, and she was unable to discuss
whether he desired to establish an advance directive at that time. We note that the
time the form was completed by the admit clerk or admitting nurse is not indicated
on the document and, thus, it is not possible to determine whether the form was
completed at the time of his arrival at the emergency room or when he was transferred
from the emergency room to the hospital unit at 5:40 p.m. for further observation.
The Defendant could have been medicated prior to receiving the form. The medical
records indicate that the Defendant was given 2 mg of Ativan IV at 1:27 p.m. Also,
the Defendant was given 6 mg of Morphine IV at 4:03 p.m. after complaining at 3:55
p.m. of a throbbing sensation to his left index finger.
14 The Defendant’s hospital discharge summary reflects an admitting diagnosis
of “rhabdomyolysis secondary to cocaine; rule out acute coronary syndrome.” He
was discharged on January 26, 2006, and no discharge diagnosis is noted. The
history of his present illness indicates that he presented with left-sided chest pain and
left arm pain, no diaphoresis, and pain at the left index finger.1 The Defendant
reported a myocardial infarction at age 21 which the physician found questionable.
In his social history, the Defendant admitted to smoking cocaine. During the course
of his hospitalization, the Defendant’s cardiac status improved as reflected in the
cardiac lab results. The focus of his stay turned to his left index finger which had an
abscess and to a cyst on his neck located in the upper right side of the neck. During
his stay, the Defendant underwent an incision and drainage of an abscess on his left
index finger and the subcutaneous cyst on his neck was removed.
As noted by this court in State v. Brooks, 505 So.2d 245, 247 (La.App. 3 Cir.
1987),
Before a confession can be introduced into evidence, the state has the burden of proving that the confession was free and voluntary. La.R.S. 15:451. Where the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Robinson, 384 So.2d 332, 335 (La.1980).
Additionally, the supreme court noted in State v. Manning, 03-1982, p. 26 (La.
10/19/04), 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct. 1745 (2005).
that “the mere fact of drug or alcohol intoxication is insufficient standing alone to
1 Diaphoresis is defined as profuse sweating.
15 render a confession involuntary. See State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d
1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450 (1994)(confession voluntary although
defendant had smoked three or four cocaine rocks the night before his 11 p.m.
statement, as well as consumed several beers the day he confessed).”
In the instant case, we find that the evidence adduced at the hearing on the
Defendant’s motion to suppress clearly indicates that the Defendant used crack
cocaine. However, there was no evidence that the Defendant was under the influence
of crack cocaine at the time of his confession to the extent that it negated his
comprehension and rendered him unaware of the consequences of what he was
saying.
The Defendant correctly asserts that he was taken to the hospital immediately
after giving his statement due to complaints of chest pains. However, there is no
evidence, as alleged by the Defendant, that he admitted or reported to the arresting
officers that he had just smoked crack cocaine which was allegedly causing his chest
pain. Further, the testimonies of Officers Rachal and Gleason and Detective Thiels
indicate that the Defendant did not appear to be under the influence of drugs and
appeared to understand his rights. All three officers had experience with identifying
drug intoxication and disorientation. The Defendant did not report cocaine use until
he presented to the hospital, and even then, the physical assessment by the emergency
room nurse and physician both indicate that the Defendant was in no acute or
apparent distress, was oriented to person, place, and time, was neurologically intact
and had no sensory deficits.
As to the Defendant’s allegation that he was unable to sign his advise of rights
form at 10:45 a.m., Officers Rachal and Gleason and Detective Thiels explained that
the Defendant had gone to the hospital before they had the chance to present the form
16 to the Defendant for his signature. Thus, the lack of a signature was due to the
Defendant’s absence, not because of his inability to sign the document. The
Defendant’s hospital discharge summary supports his contention that he abuses
cocaine and reflects a diagnosis of Rhabdomyolysis secondary to cocaine. However,
the document does not reflect that the Defendant was incoherent from cocaine
ingestion at the time he was Mirandized. The Defendant was given Ativan and
Morphine as stated in his brief. We note, however, that the Morphine was given to
relieve pain in his left index finger and was not related to cocaine ingestion.
As to the Defendant’s sleepiness during the interview upon his admission to
the hospital, we mentioned above that the time the form was filled out is unknown.
Further, the form could have been filled out up his arrival at the emergency room or
at the time of his admission to the hospital. The Defendant was medicated on two
separate occasions, either of which could have caused the Defendant’s drowsiness.
Without any additional information, the fact that the Defendant was falling asleep at
the time his admit nurse was completing the lower portion of the patient
rights/advance directive acknowledgment statement does not prove that the
Defendant was incapacitated from cocaine at the time he was Mirandized.
Considering the evidence presented at the hearing, we find that the State met
its burden of proving that the Defendant’s confession was free and voluntary. The
evidence supports the State’s contention that Defendant was properly advised of his
Miranda rights as he has not shown that he was in a state of incapacitation at that
time. Accordingly, we find that these assignments of error are without merit.
CONCLUSION
The Defendant’s conviction is affirmed.