State of Louisiana v. Pernell D. Smith

Opinion

STATE OF LOUISIANA * NO. 2024-K-0782

VERSUS * COURT OF APPEAL

PERNELL D. SMITH * FOURTH CIRCUIT

* STATE OF LOUISIANA

*

* *******

SCJ JENKINS, J., DISSENTS WITH REASONS.

The majority contends that Defendant was adequately informed of his right

to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602

(1966) and that he knowingly and voluntarily waived his right to counsel. I

disagree.

In reviewing the sufficiency of the Miranda warnings rendered herein, while

no exact language is required, the duty to inform an individual of his right to

consult with a lawyer before interrogation and to have a lawyer present with him

during interrogation “is an absolute prerequisite to interrogation.” Miranda, 384

U.S. at 471, 86 S.Ct. 1602; see also Duckworth v. Eagan, 492 U.S. 195, 202, 109

S.Ct. 2875 (1989). Further, the warnings may not convey any limitations to the

accused’s right to counsel during an interrogation. California v. Prysock, 453 U.S.

355, 360-61, 101 S. Ct. 2806 (1981). Louisiana jurisprudence has recognized this

precept in State v. King, 2019-01332, pp. 6-7 (La. 4/3/20), 340 So.3d 754, 757-58

and State v. Nunez-Melendez, 2023-0784, p.4 (La. App. 4 Cir. 12/29/23), 382

So.3d 408, 410.

In this case, the Miranda colloquy shows that Det. Moore read Defendant

the Miranda warnings from a form. Thereafter, Det. Moore asked Defendant if he

understood those rights. Defendant then questioned Det. Moore as to whether he would receive an attorney during the interrogation if he could not afford one. Det.

Moore’s response to Defendant’s question asserted that an attorney would not be

provided “at this moment.” After being told he would not be provided an attorney,

Defendant stated, “[t]hat’s what I was trying to figure out.” Then, Det. Moore

proceeded to ask Defendant if he wished to make a statement.

The reading of Defendant’s Miranda rights from a form poses no legal issue;

however, Defendant replied with a question when asked if understood his rights.

Det. Moore did not ask Defendant if he understood his rights nor did she clarify

that he was entitled to an attorney during questioning. Being told that an attorney

would not be provided “at this moment” when inquiring about the right to an

appointed attorney during interrogation implies a limitation on the right to counsel

as prohibited in King and Nunez-Melendez, supra. Here, Defendant’s immediate

response after inquiring about counsel and being told an attorney would not be

provided was, “[t]hat’s what I was trying to figure out.” This response from

Defendant inferred that he was trying to understand whether he would be provided

with an attorney during questioning, and the detective’s answer solidified his belief

an attorney would not be provided. Based on this interaction, Det. Moore’s

recitation of Miranda to Defendant did not reasonably convey that Defendant had

the right to an attorney present during the interrogation. As such, I find no error in

the trial court’s finding that “it was clear that anyone who was administered that

right would have been led to think that he . . . was not entitled to a lawyer [and]

could not get a lawyer.” Accordingly, the totality of the circumstances showed the

State failed to provide Defendant with adequate Miranda warnings.

I also find that Defendant did not knowingly and voluntarily waive his

Miranda rights as maintained by the majority and the State. Well-settled

jurisprudence provides that before the State may admit a defendant’s statements, it

must establish that “the accused in fact knowingly and voluntarily waived Miranda rights when making the statement.” North Carolina v. Butler, 441 U.S. 369, 373,

99 S. Ct. 1755, 1757 (1979). In Moran v. Burbine, the United States Supreme

Court stated:

The inquiry into whether there is a valid waiver has two distinct dimensions. First, 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 both of the nature of the right being abandoned and the consequences of the decision to abandon it.

475 U.S. 412, 421, 106 S. Ct. 1135 (1986).

Moreover, a waiver is not valid if the State merely shows that Miranda

warnings were given and that the accused made an uncoerced statement. Berghuis

v. Thompkins, 560 U.S. 380, 383, 130 S. Ct. 2250, 2261 (2010); State v. Vigne,

2001-2940, p. 6 (La. 6/21/02), 820 So.2d 533, 537. Rather, the State must further

show that the accused understood those rights, that is, the right being abandoned

and the consequences of such abandonment. Berghuis, 560 U.S. at 384, 130 S. Ct.

at 2261-62; Moran, 475 U.S. at 421-22, 106 S. Ct. at 1141; Colorado v. Spring,

479 U.S. 564, 573-75, 107 S. Ct. 851 (1987).

In the matter sub judice, as to the “voluntary” prong the majority maintains

that Defendant voluntarily waived his Miranda rights because the record is devoid

of any coercion, intimidation, or deception on Det. Moore’s part in obtaining a

statement from Defendant. The majority concludes that the transcript supports that

Det. Moore was “calm, thorough, and cautious” throughout the interrogation and

did not use any tactics to obtain an involuntary statement from Defendant; as such,

there are no indications that Defendant’s Miranda waiver was involuntary.

While the record shows that Defendant may have voluntarily waived his

Miranda rights, this Court must still assess the second prong-whether that waiver

was made knowingly of the rights being abandoned and the consequences of

abandoning those rights. The majority highlights that Defendant’s statements that “I’m alright. I understand. I’m going to talk,” and that he ultimately made a

statement and signed the waiver form- after the detective’s response that he would

not be appointed counsel during interrogation-indicated that he made a knowing

waiver. However, that Defendant subsequently agreed to speak with Det. Moore

and signed a waiver form is not dispositive of a knowing waiver. Defendant was

told an attorney would not be provided, in violation of Miranda, and no curative

measures were taken to rectify the information which suggested he would be

deprived of that constitutional right. Defendant’s understanding of his right to

counsel was therefore tainted by the State’s misinformation that he did not have the

right to counsel during interrogation. Because of the insufficiency of the warnings

and the absence of any attempt to rectify the insufficiencies, Defendant was

effectively deprived of his ability to knowingly waive his Miranda rights.

Upon review, the record supports that Defendant waived his rights under the

mistaken belief that he was not entitled to an attorney during the interrogation.

Therefore, the trial court did not err in its ruling that Defendant did not make a

knowing waiver of his Miranda rights.

Based on the foregoing reasons, I find Defendant was not adequately

informed of his Miranda rights and did not make a knowing waiver of those rights.

Therefore, I respectfully dissent and would deny the State’s writ application.