State v. Nelson

822 So. 2d 796, 2002 WL 1378862
Louisiana Court of Appeal·Decided June 26, 2002·No. 02-KA-65·Published·Cited by 29 cases

Opinion

822 So.2d 796 (2002)

STATE of Louisiana
v.
Kelly NELSON.

No. 02-KA-65.

Court of Appeal of Louisiana, Fifth Circuit.

June 26, 2002.

*797 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for the State.

Philip E. O'Neil, Gretna, LA, for defendant-appellant.

Court composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.

McMANUS, Judge.

In this matter, we affirm the trial court's denial of the motion to suppress the statement by the defendant and affirm the defendant's conviction of possession of cocaine.

STATEMENT OF THE CASE

On May 24, 2001, a bill of information was filed charging defendant, Kelly Nelson, with possession of cocaine. She pled not guilty on June 28, 2001. On August 29, 2001 a motion to suppress evidence and statements was denied by the trial court. Subsequently, a jury trial was held on September 25, 2001 and she was found guilty as charged. She was sentenced on October 10, 2001 to ten years at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals alleging four assignments of error: (1) that the trial court erred in denying the motion to suppress her statements because the Miranda warnings were incomplete and cannot serve as a basis for admission *798 of the alleged statements; (2) that the trial court erred in denying the motion to suppress evidence that informant's tip was insufficient to establish probable cause; (3) that the trial court erred in permitting the opinion of Detective Russell Lloyd concerning the amount of cocaine relative to personal use and street price of cocaine without first qualifying him as an expert in his specialized field or expertise; and (4) that the trial court permitted the assistant district attorney to improperly question the defendant on cross-examination concerning alleged other crimes in violation of La.C.Cr.P. art. 770.

FACTS

On May 14, 2001, Detective Scott Zemlik and other officers received information on drug activity in the Bon Soir Motel, Room 59 in Westwego, Louisiana involving a suspect named "Tony" and a Pontiac Grand Am rental car. Detective Zemlik and his partner went to the motel and observed a car meeting the description. During the investigation it was learned that Kelly Nelson, the defendant, had rented the car and Room 59. Detective Zemlik then learned that the car would be en route to the McDonald's restaurant at 1212 Stumpf Boulevard in Gretna, Louisiana with large amounts of cocaine. Detective Zemlik and other officers set up surveillance at the McDonalds and waited for the car. At approximately 4:02 p.m. the Grand Am arrived in the parking lot. The officers approached the car, identified themselves and had the occupants exit the car. The driver of the vehicle was Thomas Roberson. Detective Zemlik found $1121 in cash on his person. Detective Lloyd, supervisor of the narcotics division for the Gretna Police Department, went to the passenger side of the car and removed the defendant, Kelly Nelson, from the car. He spoke to her, advised her of the ongoing investigation and conducted a pat-down search but did not find any weapons. He then advised her of her rights and she stated she understood them. Detective Lloyd noted that the defendant was nervous and crying. He told her a female officer would come down to conduct a thorough search. The defendant then removed a large bag of off-white rocks from her bra and handed it to Detective Lloyd. She told Detective Lloyd the following statement: "He told me to hold this. I don't know what's going on." Mr. Roberson and the defendant were then placed under arrest and taken to the Gretna Police Department. After arriving at the police department, Mr. Roberson and the defendant were again advised of their rights. Neither made any statements once they arrived at the police station.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in denying the motion to suppress the statement she made to Detective Lloyd after he advised her of her rights because the Miranda warnings were incomplete and cannot serve as the basis for the admissibility of the alleged statements of the defendant. Defendant contends Detective Lloyd failed to advise her that she could terminate the questioning at any time.

Before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the state must prove beyond a reasonable doubt that the defendant was first advised of her Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Thucos, 390 So.2d 1281 *799 (La.1980); State v. Bentley, 96-795 (La. App. 5 Cir. 3/25/97), 692 So.2d 1207. The Supreme Court in Miranda held that the person in custody must be informed that he has a right to remain silent, that any statement he does make may be used against him as evidence, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Defendant argues that she was not advised of her right to terminate questioning after she began making a statement. This is not one of the specified rights set forth in Miranda. The right to terminate questioning is a right that must be observed; however, it is not specifically included in the rights that must be verbally advised. There is no authority for defendant's argument that she must be advised of the right to terminate questioning, beyond advice of the right against self-incrimination under Miranda.

At the hearing on the motion to suppress evidence and statements, Detective Lloyd testified that he told defendant about the narcotics investigation and advised defendant of her rights immediately after he removed her from the vehicle. He testified that he did so from memory, telling her that she need not make any statement, that she had the right to remain silent, that anything she said might, could and would be used against her in a court of law, that if she could not afford an attorney, the court would obtain an attorney to represent and advise her, and that she had the right to have her attorney or an appointed attorney present at the time of any questioning or the giving of any statements. Defendant stated that she understood those rights. In the instant case, Detective Lloyd advised defendant of all of her rights pursuant to Miranda.

In addition, the record in this case reflects that once defendant arrived at the police station, she refused to make any more statements. Thus, she exercised her right to terminate questioning, which the officer observed.

Based on the foregoing, we conclude that the statements made by the defendant to the detective occurred after defendant had been fully advised of her constitutional rights. Therefore, the trial judge did not err in denying defendant's motion to suppress her statements to Detective Lloyd.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in denying her motion to suppress evidence because the informant's tip was insufficient to establish probable cause for the arrest. Specificall

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State v. Nelson, 822 So. 2d 796, 2002 WL 1378862 (La. Ct. App. 2002).

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