STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-779
STATE OF LOUISIANA
VERSUS
READO NARGO A/K/A RENALDO NARGO
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C 19287 HONORABLE JUDGE ERIC R. HARRINGTON, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.
AFFIRMED.
Van Hardin Kyzar District Attorney – 10th Judicial District P. O. Box 838 Natchitoches, LA 71458-0838 Telephone: (318) 357-2214 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 Telephone: (337) 436-2900 COUNSEL FOR: Defendant/Appellant – Renaldo Nargo a/k/a Reado Nargo Reado Nargo a/k/a Renaldo Nargo Wolf #4 Louisiana State Prison Angola, LA 70712 Defendant/Appellant THIBODEAUX, Chief Judge.
Defendant Reado Nargo was charged by grand jury indictment with
the second degree murders of Johnny L. Brimzy (John Brimzy) and Stanley J.
Brimzy in violation of La.R.S. 14:30.1. Nargo pled not guilty to both counts.
After a trial by jury, he was found guilty of the second degree murder of John
Brimzy and guilty of the responsive verdict of manslaughter for the killing of
Stanley Brimzy. Nargo was sentenced to life imprisonment at hard labor without
the benefit of probation, parole, or suspension of sentence for the murder of John
Brimzy, and forty years at hard labor for the manslaughter of Stanley Brimzy, to
run consecutively. His Motion to Reconsider Sentence was denied.
Nargo now appeals his convictions, arguing that the trial court erred
when it determined the recorded and non-recorded statements allegedly made by
Nargo were freely and voluntarily made, and thus admissible; that evidence was
improperly published to the jury prior to their authentication, identification, or
admission into evidence, therefore making it unavailable for appellate review; that
trial counsel rendered ineffective assistance of counsel by failing to object to the
publishing of this evidence; and that the trial court erred in failing to assure that
discussions and arguments of counsel made during sidebar proceedings were
recorded and preserved for appellate review.
After the record was lodged in this court, appellate counsel filed two
motions to supplement the appellate record, which were granted. In the first
motion to supplement, appellate counsel requested that this court order the court
reporter to prepare a transcript of three bench conferences, and in the second, a transcription of statements made by Nargo and played for the jury that was not
admitted into evidence. For the following reasons, we affirm.
I.
ISSUES
We must determine:
(1) whether the trial court erred in concluding that Nargo knowingly, intelligently, and voluntarily gave the recorded and non-recorded statements after waiving his rights;
(2) whether the trial court erred in considering recordings which had not been admitted into evidence at the admissibility hearing in reaching its decision that the statements made by Nargo were admissible at trial;
(3) whether the trial court erred in publishing the recorded statements to the jury prior to their authentication or admission into evidence;
(4) whether trial counsel’s performance fell below that guaranteed by the Sixth Amendment; and
(5) whether the trial court erred in failing to assure sidebar discussions were recorded and preserved, resulting in the denial of Nargo’s constitutional right on appeal.
II.
FACTS AND PROCEDURAL HISTORY
In the early morning of January 26, 2012, Detective Michael Wilson
received a call about a shooting in Campti, Louisiana. Upon arrival at the scene,
Detective Wilson found the body of Stanley Brimzy in the road in front of
Claudine Caldwell’s trailer home (Nargo’s girlfriend). The body of a second
victim, John Brimzy, was found later that morning approximately 100 yards away
2 from the trailer home. It was established that Stanley Brimzy was killed by a
single gunshot to the head, and that John Brimzy suffered three gunshot wounds to
the head.
Caldwell testified that she was at work when she received a call from
Nargo about a break-in at her home. Caldwell returned home, and Nargo informed
her that his AK-47 firearm had been stolen, and that he believed Stanley and John
Brimzy were responsible. Soon thereafter, Stanley and John Brimzy approached
Caldwell’s trailer home in a truck. Caldwell testified that she heard Nargo ask
Nathan Davis, who was also present at the scene, where “the heat” (pistol) was.
Davis testified that he gave Nargo a pistol. Sylvester Millage, also present at the
scene, testified that he also saw Nargo in possession of the pistol given to him by
Davis. Caldwell, Davis, and Millage each testified that they witnessed Nargo
approach Stanley while holding the pistol. Moments later, Caldwell heard a
gunshot, and saw John Brimzy flee from the truck. Sylvester testified that he saw
Nargo running behind John Brimzy and shooting at him. John Brimzy was later
found dead across the nearby railroad tracks. After the killings, Nargo was brought
in for questioning by Detective Wilson, at which time he admitted to killing both
victims. During questioning, recorded and non-recorded statements were given.
III.
LAW AND DISCUSSION
Failure to Admit the Recordings into Evidence
Nargo first contends that the trial court erred in considering recordings
which had not been admitted into evidence at the admissibility hearing in reaching
3 its decision that the statements made by Nargo were voluntary and, therefore,
admissible at trial. We disagree.
In State v. Lloyd, 48,914 (La.App. 2 Cir. 1/14/15), 161 So.3d 879, writ
denied, 15-307 (La. 11/30/15), 184 So.3d 33, the second circuit found that it could
consider on appeal audio recordings that were played for the jury but not admitted
into evidence. The defendant argued that while the recordings were played in
court, they should not have been considered by the trial court. Id. The Lloyd court
offers us guidance, and states the following:
At trial, the prosecution played recordings of Mrs. Lloyd’s call to the police and the defendant’s interview with Detective Strickland on the night the offense occurred. Defendant’s counsel did not object to the use of the recordings at trial. With regard to the defendant’s statement to Detective Strickland, the record is clear that defense counsel wanted the recording played in open court so the trial court could hear it. However, the prosecution failed to formally introduce the recordings into evidence after they were played in the trial court and they were not included in the record on appeal. In this court defense counsel filed a motion to supplement the record, noting the absence of the recordings in the record.
Id. at 892. The second circuit found that since the recordings were played in open
court without objection by the defendant, the recordings were tacitly admitted and
the trial court did not err in considering them. Lloyd, 161 So.3d 879. See State v.
Rodriguez, 554 So.2d 269 (La.App. 3 Cir. 1989), writ granted in part and
remanded, 558 So.2d 595 (La.1990). 1
During the State’s questioning of Detective Wilson, a hearing was
held outside of the jury’s presence regarding the admissibility of inculpatory
statements made by Nargo. After hearing testimony and argument, the trial court
1 A state trooper testified about the contents of her report, which was not admitted into evidence. The defendant failed to object at trial, and the appellate court found that any right to attack the conviction based on the alleged error had been waived.
4 found that Nargo’s statements were freely and voluntarily given after being fully
advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602
(1966). Subsequently, the State played the recording of Nargo’s statements to the
jury, but did not seek to admit the recording into evidence. As previously stated,
no objection was made by the defense regarding this omission. Consequently,
Nargo’s statements were properly considered by the trial court in ruling on the
voluntariness of those statements.
Preservation for Appellate Review
Nargo further argues that because the recordings were not properly
admitted into evidence, they are unavailable for review by either appellate counsel
or the appellate court, thus denying him full appellate review.
While this court has previously held in State in the Interest of J.C.R.,
14-1146 (La.App. 3 Cir. 3/4/15), 157 So.3d 1284, that exhibits played during an
adjudication hearing but not admitted into evidence were not preserved for
appellate review, the present appeal is distinguishable. In J.C.R., the trial record
would have been incomplete without the audio exhibits played during the
adjudication hearing. Here, because transcripts of the statements are available, the
record is complete with no indication of prejudice. Moreover, Nargo’s trial
counsel used the transcript at length in his cross-examination of Detective Wilson,
and it was the defense that filed the motion to supplement the record such that the
transcript is now part of the record on appeal. Accordingly, and in following
Lloyd, the record is complete, as the statements were tacitly admitted into
evidence.
5 Publication of the Statements to the Jury
Nargo next asserts that it was improper for the jury to consider his
statements since they were not properly authenticated and formally introduced into
evidence. He contends that even though Detective Wilson testified that he had
listened to the recordings, he never identified the voice on the recordings or
acknowledged that they were recordings he had made. Because we have
concluded that Nargo’s recorded statements were tacitly admitted into evidence,
we shall consider only the issue of authenticity.
While defense counsel objected to the admissibility of the substance
of Nargo’s statements based on their alleged involuntariness, which will be later
discussed, there was no contemporaneous objection based on lack of authenticity.
Defense counsel also did not object to the failure to formally admit the recording
into evidence. When the statements were referenced later in Detective Wilson’s
testimony, defense counsel asked how the statements were marked in evidence.
When the State informed defense counsel that the statements were not marked, but
were part of the transcript, defense counsel failed to object.
Further, we find there was sufficient evidence elicited during the
testimony of Detective Wilson to authenticate the statements. In particular, certain
time stamps on the recordings were referenced at the admissibility hearing.
Additionally, defense counsel was provided the audio recording during the
discovery process and well in advance of trial. When the recording was played for
the jury, the State asked Detective Wilson if the tape was the initial recording of
the conversation he had with Nargo. Detective Wilson confirmed that it was.
6 Accordingly, we find the trial court properly considered recordings
which had not been formally admitted into evidence, the recorded statements were
properly preserved for appellate review, and were properly published to the jury.
Ineffective Assistance of Counsel
Because defense counsel did not contemporaneously object to the
authenticity of the recorded statements when published to the jury, Nargo is
precluded from raising these alleged errors on appeal unless it can be determined
that defense counsel was ineffective for failing to object. Nargo now alleges
ineffective assistance of counsel.
“The standard of review on a claim of ineffective assistance of
counsel is a deficiency in counsel’s performance giving rise to a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Teeter, 504 So.2d 1036, 1040
(La.App. 1 Cir. 1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052 (1984)).
A criminal defendant is guaranteed the effective assistance of counsel. United States Sixth Amendment; La. Const. art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La. 1986). To establish a claim for ineffective assistance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel’s professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed. 2d 180 (1993).
A claim of ineffectiveness is generally relegated to post-conviction, unless the record permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d
7 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel’s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La. 7/1/97), 669 So.2d 29, 32-35.
State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157, reversed
on other grounds, 02-2793 (La. 5/25/04), 875 So.2d 37.
Nargo maintains a new trial is warranted because it is impossible to
determine what effect, if any, the recordings had on the jury’s verdict. Appellate
counsel argues that Detective Wilson’s testimony regarding Nargo’s waiver of his
rights was inconsistent. Detective Wilson testified on direct examination that
before the second recording he did not re-read Miranda rights to Nargo or obtain a
second waiver. On cross-examination, however, he testified that he did discuss
Miranda rights at the beginning of the second recording. Appellate counsel also
argues that the first recording clarifies that Nargo’s signature on the waiver of
rights form should not have been considered a voluntary waiver of his right to
remain silent, but rather an acknowledgment that he had been read the waiver
section. Thus, without the recordings, the court was provided conflicting
testimony.
Because we find appellate counsel fails to sufficiently prove Nargo
was prejudiced by defense counsel’s alleged errors, it is unnecessary to determine
if defense counsel in fact erred in failing to make these objections. We conclude
there is no merit to the ineffective assistance of counsel claim.
8 Voluntariness of the Statements
Nargo also maintains that the trial court erred in finding that both his
recorded and non-recorded statements given to detectives were freely and
voluntarily made, and thus were inadmissible.
In State v. Fisher, 97-1133, p. 4 (La. 9/9/98), 720 So.2d 1179, 1182,
the supreme court explained:
A trial judge’s ruling on a motion to suppress a confession is entitled to deference, but only if it is supported by the evidence. State v. Carter, 94-2859, p. 24 (La. 11/27/95); 664 So.2d 367, 385. A reviewing court may consider the evidence presented at trial in addition to the evidence presented at the hearing on the motion to suppress. State v. Green, 94-0887, p. 11 (La. 5/22/95); 655 So.2d 272, 280.
Furthermore, in State v. Blank, 04-204, p. 10 (La. 4/11/07), 955 So.2d
90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494 (2007), the supreme court
stated:
A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by evidence. State v. Benoit, 440 So.2d 129, 131 (La.1983); State v. English, 582 So.2d 1358, 1364 (La.App. 2nd Cir. 1991), writ denied, 584 So.2d 1172 (La.1991). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. [State v. Vessell, 450 So.2d 938, 943 (La. 1984)].
Detective Wilson testified that he brought Nargo in for questioning
and advised him of his Miranda rights. Nargo thereafter signed a written Miranda
warning, indicating that he had read and understood his rights. He additionally
signed a portion of the form which indicated that he waived his rights. The
following exchange occurred:
9 DETECTIVE WILSON: Before we ask any questions. You must understand your rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer, and have him present with you before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before questioning, if you wish. If you decide to answer questions now, without a lawyer present, you still have the right to stop (inaudible) at any time. You also have the right to stop (inaudible) at any time (inaudible), okay?
MR. NARGO: (No response recorded).
DETECTIVE WILSON: Are you all right?
MR. NARGO: (Crying).
DETECTIVE WILSON: Okay. I need your signature right here, Mr. Nargo stating I read you these rights, and you understand them. (Inaudible) there by that X. Okay, and go ahead and continue to the bottom of the page which is the Waiver of the Rights. (Inaudible) you’ve read the statement of your rights, and you understand what your rights are. (Inaudible) make a statement and answer questions. You do not want a lawyer at this time. You understand and know what you are doing. No promises or threats have been made to you. No pressure or coercion of any kind has been used against you. Is that correct?
DETECTIVE WILSON: Okay…(inaudible) signature now… (inaudible) … sign that. Just confirming that I read you the waiver of your rights.
MR. NARGO: (Inaudible).
DETECTIVE WILSON: Do what now?
MR. NARGO: (Inaudible) people. I ain’t answering no questions till my people get here (inaudible), man (inaudible).
DETECTIVE WILSON: Okay, you say, you’re not going to answer any questions until your people get there, right?
10 MR. NARGO: (Inaudible).
DETECTIVE WILSON: Okay.
MR. NARGO: I need that favor man. (Inaudible). . . please man. Please. . . cause once I do this, I ain’t gonna be wanting to sit in here no longer man.
When Nargo requested to speak with his “people,” Detective Wilson
immediately ceased questioning and allowed him to speak with Caldwell. After
approximately ten minutes, Nargo indicated that he wished to continue speaking
with Detective Wilson. From this point, Nargo never indicated that he did not
wish to talk or that he wanted a lawyer. Detective Wilson testified that he did not
threaten or coerce Nargo at any point during questioning, and that Nargo spoke
with him freely and voluntarily. On cross-examination at the admissibility hearing,
Detective Wilson testified that although Nargo was crying at the time, he signed
the rights form freely. He also explained that Nargo was not consistently crying
throughout questioning. Although he did not ask Nargo to sign another waiver
between the pausing of the first recording and the start of the second recording,
Nargo was once again advised of his Miranda warnings at the start of the second
recording. Approximately one hour passed between the two recordings.
Nargo argues that his initial signing of the Miranda form did not
equate to a knowing and voluntary waiver of his rights because he was crying at
the time and because he refused to speak with police until he was able to speak
with his family. This, Nargo argued, indicated that he was exercising his right to
remain silent. He, thus, concludes that the inculpatory statements given to
Detective Wilson after he exercised his right to remain silent should not have been
admitted. Further, Nargo argues that there was no waiver of his right to remain
silent until the second recorded statement, and that any statement made before that
11 one, when he acknowledged he was waiving his right to remain silent, was
inadmissible. Appellate counsel maintains that although Nargo signed the waiver
form, this was not a waiver of his rights, but instead an acknowledgment that he
had received and read the form.
We find, however, that because Nargo signed the Miranda form
during the first recording and had been advised of his Miranda warnings at the
start of his second statement, that his statements were freely made. While Nargo
makes the argument that he should have been advised of his rights once more prior
to the unrecorded oral statement in which he confessed to killing both victims, we
find jurisprudence does not require that Miranda warnings be repeated each time a
suspect is questioned, absent a showing of coercion by police. See State v.
Moseley, 587 So.2d 46 (La.App. 2 Cir.), writ denied, 589 So.2d 1006 (La.1991).
Although Nargo cried during questioning, we find no indication that
this emotional distress was so great that it overcame the free and voluntary nature
of Nargo’s confession. See State v. Weeks, 345 So.2d 26 (La.1977) (where the
court found that despite defendant’s contention that the statements were
involuntary because she was upset and stressed, the record amply supported a
finding that the defendant was sufficiently in possession of her mental faculties to
make the statements voluntary).
We further find that although Nargo requested to speak with “his
people,” consequently interrupting questioning, this was not necessarily an
invocation of his right to remain silent which required another reading of his
Miranda rights prior to subsequent questioning. However, even if Nargo’s request
did constitute the invocation of his right to remain silent, this invocation does not
permanently bar officers from reinitiating contact/questioning. See State v.
12 Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98), 709 So.2d 213, writ denied, 98-582
(La. 7/2/98), 724 So.2d 202. The appropriate reinitiation of contact depends on
who initiates the further questioning, the time delay between the original request and subsequent interrogation, whether Miranda warnings were given before each separate interrogation, whether waiver of rights forms were signed, and whether pressures were asserted on the accused by the police between the time he invoked his right and the subsequent interrogation.
Id. at 218. In the present case, however, there is no indication that Detective
Wilson pressured Nargo to speak with him after he spoke with Caldwell.
According to Detective Wilson’s testimony, Nargo voluntarily resumed talking to
Detective Wilson and offered a confession without prompting. Nargo also
reaffirmed that he was advised of his Miranda rights at the start of the second
recording.
While the transcript reveals Nargo’s lack of response when first
advised of his Miranda rights, we find a lack of response does not necessarily
indicate a lack of understanding. See State v. Pennington, 12-804 (La.App. 1 Cir.
2/15/13) (unpublished opinion), writ denied, 13-838 (La. 11/1/13), 125 So.3d 420.
There is no indication in the transcript or in Detective Wilson’s testimony that
Nargo lacked an understanding of any of his rights. There is additionally no
indication that Nargo was under any duress at the time in which he signed the
rights form or at any other time during his questioning.
Accordingly, we find the trial court did not err in finding Nargo’s
statements were freely and voluntarily given.
13 Failure to Record Sidebar Conversations
Nargo finally contends that his constitutional right to a full appeal has
been denied by the trial court’s failure to assure that discussions and arguments
made by trial counsel during sidebar proceedings were recorded and preserved for
appellate review. Appellate counsel specifically cites to three unrecorded bench
conferences. We find this argument lacks merit.
Louisiana Code of Criminal Procedure Article 843 requires the trial
court to “record all of the proceedings, including the examination of prospective
jurors, the testimony of witnesses, statements, rulings, orders, and charges by the
court, and objections, questions, statements, and arguments of counsel.”
In State v. Pinion, 06-2346, pp. 7-8 (La. 10/26/07), 968 So.2d 131,
134-35, the supreme court concluded that “the failure to record bench conferences
will ordinarily not affect the direct review process when the record suggests that
the unrecorded bench conferences had no discernible impact on the proceedings
and did not result in any specific prejudice to the defendant.” See State v.
Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120
S.Ct. 220 (1999). “The Court has instead conducted a case-specific inquiry to
determine whether the failure to record the conferences results in actual prejudice
to the defendant’s appeal.” Pinion, 968 So.2d at 134.
Nargo first notes that an unrecorded bench conference occurred
during opening statements. Later, however, the trial court stated for the record that
defense counsel no longer wanted to call attention to the issue, and simply
requested a jury instruction that opening and closing statements are not evidence.
The State contends this resolution did concern the unrecorded bench conference
during opening statements.
14 The second unrecorded bench conference occurred at the request of
defense counsel during the testimony of a witness. Nargo maintains that following
the bench conference the court took a recess, excusing the jurors. Following their
dismissal, the judge advised the court observers to refrain from showing emotion
during the display of evidence. Nargo offers no further comment or argument as to
this bench conference.
Finally, the third bench conference occurred during the State’s
questioning of Caldwell. Nargo notes that when questioning resumed after the
bench conference, the prosecution continued to ask Caldwell about what she told
police. Caldwell recounted her knowledge of what transpired after Stanley Brimzy
was shot. Once more, Nargo offers no further comment or argument as to this
bench conference.
Nargo maintains the contents of the non-recorded bench conferences
specifically mentioned were necessary for appellate counsel, who was not trial
counsel, to properly review the case for potential errors. Nargo fails to
demonstrate, however, what discernible impact these bench conferences had on his
trial, and, thus, there is not sufficient prejudice to warrant a new trial. This
assignment of error lacks merit.
IV.
ERRORS PATENT
We have reviewed this matter for errors patent. We find none.
15 V.
CONCLUSION
Accordingly, we affirm Defendant’s convictions for the second degree
murder of Johnny Brimzy and for the manslaughter of Stanley Brimzy.