State v. Harrell

120 So. 3d 743, 12 La.App. 5 Cir. 821, 2013 WL 2249183, 2013 La. App. LEXIS 1033
CourtLouisiana Court of Appeal
DecidedMay 23, 2013
DocketNo. 12-KA-821
StatusPublished

This text of 120 So. 3d 743 (State v. Harrell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harrell, 120 So. 3d 743, 12 La.App. 5 Cir. 821, 2013 WL 2249183, 2013 La. App. LEXIS 1033 (La. Ct. App. 2013).

Opinions

STEPHEN J. WINDHORST, Judge.

^Defendant, Tavares Harrell, pled guilty to two counts of armed robbery (La. R.S. 14:64) and one count of aggravated second degree battery (La. R.S. 14:34.7) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denials of his motions to suppress. The trial court sentenced defendant, on each armed robbery count, to ten years imprisonment at hard labor without benefit of parole, pro[746]*746bation, or suspension of sentence, and on the aggravated second degree battery count, to ten years imprisonment at hard labor, to be served concurrently. This appeal followed.

FACTS

Because this case was resolved without a trial, the facts of the charged crimes are not fully developed in the record, but are presented in the bill of information as follows:

“On or about [January 4, 2011], [defendant] ... did rob Juan Perez while armed with a dangerous weapon, to wit: a .380 Caliber Grendel Semi-Automatic | sPistoI, wherein the wallet, a Louisiana drivers (sic) license and a social security card of Juan Perez were taken by force or intimidation ...”

“On or about [January 4, 2011], [defendant] ... did rob Hector Itzep-Vincente while armed with a dangerous weapon, to wit: a small black Semi-Automatic pistol, wherein the wallet, a Chase Visa Debit card in the name of Hector M. Itzep and $15.00 cash were taken by force or intimidation ...”

“On or about [January 4, 2011], [defendant] ... did commit aggravated second degree battery, with a dangerous weapon, by intentionally inflicting serious bodily injury upon Matthew Aittama with a firearm, specifically a small black Grendel Semi-Automatic pistol, by shooting Matthew Aittama in the buttocks ...”

DISCUSSION

In defendant’s sole assignment of error, he argues that the trial court erred in denying his motion to suppress his statement. He specifically contends that because he was not allowed to speak with a parent prior to his statement, the statement was neither knowing nor voluntary.

The following was adduced at the motion to suppress hearing.

Pursuant to an investigation regarding alleged crimes committed by defendant, Officer Nicholas Engler of the Kenner Police Department, around 12:00 A.M. on January 5, 2011, displayed a photographic lineup to Mr. Matthew Aittama while Mr. Aittama was in the hospital, the victim of a shooting that had occurred several hours earlier. Mr. Aittama identified defendant from the lineup as the person who had shot him.

After this identification was obtained, Detective George Hoffman of the Kenner Police Department sought and was granted an arrest warrant for defendant and a search warrant for defendant’s residence located at 2609 Phoenix Street in Kenner. Detective Hoffman testified that at the time the warrant was issued, he | intended to obtain a statement from defendant. The warrant was executed around 6:00 A.M. on January 5, 2011, at which time Detective Hoffman and Officer Engler made entry into the residence with U.S. Marshals. The U.S. Marshals arrested defendant and defendant’s mother, who had an outstanding attachment for her arrest. At this time, defendant was neither advised of his rights nor questioned. Defendant and his mother were transported to the Kenner Police Department.

Upon arriving at the Department, defendant was brought to an interview room on the third floor, while his mother remained in custody on the first floor. Defendant’s mother was not given the opportunity to talk to her son while at the Department. Defendant was not asked if he wanted to talk to his mother or father. Detective Hoffman told him: ‘Your mom’s downstairs. Do you understand your rights? I’d like to take a statement from you.” Defendant responded: “I know my rights.”

At 9:11 A.M., Detective Hoffman, along with Officer Engler, presented defendant [747]*747with the Juvenile Advice of Rights Form. The detective orally recited defendant’s rights to him. After each right, he asked defendant if he understood, and defendant said, “Yes.” At the conclusion of reading defendant his rights, the detective told him: “Go ahead and read these. Make sure you understand everything on here, because your parent’s not present.” Defendant replied: “Okay.” Defendant then read each right, and, on his own, initialed next to each one, except the last, the sixth right. He signed his name and indicated he was willing to give a statement. Defendant is able to read and write, and, at the time, was in the ninth grade.

The sixth right, which defendant did not initial, provides: “Before you decide whether you want a lawyer, and whether you are willing to answer questions, you will be given an opportunity to discuss this with _ | s(Parent/Concerned Adult).” Next to this sixth right, prior to defendant initialing and signing the form, Detective Hoffman had written an “X,” and, in the blank for the name of the parent/concerned adult, wrote “N/A.” At the bottom of the form, in another blank for the signature of a parent/concerned adult, Officer Engler affixed his signature indicating his presence as a witness. A taped statement was subsequently obtained. It is this statement defendant sought to suppress.

At the suppression hearing, Detective Hoffman explained that defendant’s mother was not given the opportunity to talk with her son because she was in custody, and he felt that she might be coerced into convincing her son to speak in order to gain some benefit to herself. Detective Hoffman further stated that defendant had been “in and out of the system” and that defendant was aware of what was taking place at the time. Defendant had previously been adjudicated in Juvenile Court, where the trial judge “actually sits down and explains each one of their Rights again to each one of — for each one of the Rights for that individual child.” Detective Hoffman testified that defendant was very cooperative during the interview, that he understood his rights, and that he willingly gave his statement.

Ms. Harrell, defendant’s mother, testified that if she had been given the option, she would not have allowed her son to talk to the police without an attorney being present.

During the motion to suppress the statement, the trial court expressed her displeasure concerning the police officers’ actions. She stated that if the issue before her was whether the officers were reasonable in failing to produce defendant’s mother, her ruling would be in defendant’s favor because she felt it was clear that the officers were not reasonable. She went on to further state that the reasonableness of the officer’s failure to produce the mother was not a factor to be considered. She then went on to state that the fact that a parent’s absence was | (-.unreasonable was not dispositive of the issue of whether the juvenile’s confession was free and voluntary. After considering all the factors, the trial judge found that the totality of the circumstances in this case established that defendant did make a knowing, intelligent, free, and voluntary waiver of his rights.

Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12), 90 So.3d 1114, 1120 (citation omitted). Thus, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
120 So. 3d 743, 12 La.App. 5 Cir. 821, 2013 WL 2249183, 2013 La. App. LEXIS 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrell-lactapp-2013.