State v. Smith

407 So. 2d 652
Supreme Court of Louisiana·Decided November 16, 1981·No. 81-KA-0748·Published·Cited by 38 cases

Opinion

407 So.2d 652 (1981)

STATE of Louisiana
v.
David S. SMITH.

No. 81-KA-0748.

Supreme Court of Louisiana.

November 16, 1981.

*653 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Kenneth Sanders, Asst. Dist. Attys., for plaintiff-appellee.

Robert T. Garrity, Jr., and Joseph Montgomery, Metairie, of Indigent Defender Bd., for defendant-appellant.

LEAR, Justice Ad Hoc.[*]

Defendant David S. Smith was charged by bill of information with the crime of simple burglary, a violation of La.R.S. 14:62. On October 14 and 15, 1980, he was tried before a six person jury which found him guilty of attempted simple burglary. Defendant now appeals on the basis of six assignments of error, five of which are argued.

FACTS

According to testimony by Deputy Art Scudari, on the evening of July 21, 1980, he was called, while on patrol, to St. Martin School for a possible burglary in progress. When he and his partner arrived at the school they began checking the outside of the building. The deputies observed the defendant about a block and a half away, walking from the area of the cafeteria, to the residences across the street. As the defendant reached the sidewalk across from the school his walk became rapid. Deputy Scudari and his partner, Smith, identified themselves and asked the defendant to stop. At that, defendant ran into the back yard of 403 Herring Road. As the yard was enclosed, defendant jumped the fence and hid among the shrubs and bushes. The growth made it too dark to locate the defendant, so the deputies notified police headquarters to send the canine unit.

Deputy Val Penouilh arrived with his German shepherd. When the dog was taken to the crime scene, he picked up a scent which led him to the back yard of 405 Herring Road where the defendant was located. The dog jumped defendant and bit him several times. After the dog was called off, the injured defendant was handcuffed and put into a patrol car. At that time defendant made an inculpatory statement, after which he was hospitalized for his wounds, then incarcerated.

On the ground, outside of the cafeteria door of the school, police found pot pies and small pizzas which were the apparent objects of the attempted burglary.

In Assignment of Error No. 1, defendant argues that the trial court erred in admitting into evidence an oral statement, made by defendant at the time of his arrest, which was not free and voluntary. R.S. 15:451, and La.C.Cr.P. art. 703(C) impose *654 upon the state the heavy burden of showing affirmatively and beyond a reasonable doubt that a confession was made freely and voluntarily, not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises, before it can be introduced into evidence. Defendant contends that the record supports his argument that the above statutory requirements were not met for three basic reasons.

In the first reason, defendant argues that the state failed to prove, with a signed form or by corroborating the testimony of the arresting officer, that the statement was preceded by the proper Miranda warnings. After the defendant was caught by the police dog he was handcuffed, put into the back of a police car, and read his Miranda rights by Officer Michael Humphrey. In response to this reading Officer Humphrey testified that the defendant said:

"... that he did the burglary. He knew he was guilty and he just wanted to go to the hospital and then bring him straight to Angola."

Since the defendant was handcuffed and in the police car this statement was made while in custody, but not in response to interrogation. In regard to custodial statements this court stated in State v. Robinson, 384 So.2d 332 (La.1980):

"Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: `By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way.' Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Defendant's statement herein was a spontaneous and voluntary statement given after Miranda warnings. The defendant himself testified that the officer read something to him from outside the car. This testimony corroborated the police evidence that the Miranda rights were, in fact, read to defendant. In State v. McPhate, 393 So.2d 718 (La.1981), this court said that spontaneous and voluntary statements not given as a result of a police interrogation or compelling influences are admissible in evidence without Miranda warnings even though defendant is in custody. State v. Robinson, supra. Defendant's spontaneous custodial statement is admissible under the standards set in Robinson and restated in McPhate whether or not the Miranda rights had been read. But, in the instant case, there is testimony of the rights having been read to defendant. This argument is without merit.

Defendant further claims his intoxication after fourteen hours of drinking was so severe as to render inadmissible any statement by him. Defendant argued intoxication at trial and objects here to the state's failure to produce contradictory testimony or medical evidence challenging the truth or accuracy of defendant's allegation of extreme intoxication.

This court discussed the standards for admitting statements made by persons who claim to be intoxicated in State v. Meredith, 400 So.2d 580 (La.1981):

"Where a free and voluntary nature of a confession is challenged on the ground that defendant was mentally incompetent due to intoxication at the time of the confession, such confession will be rendered inadmissible only when the intoxication *655 is of such a degree as to negate defendant's comprehension and to render her unconscious of the consequences of what she is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact and a trial judge's conclusions on this issue will not be disturbed unless unsupported by the evidence. State v. Rankin, 357 So.2d 803 (La.1978)."

In the instant case, the record reveals that there are two versions regarding defendant's presence in the residential back yard. Defendant claims that since his truck had overheated he was going to get water. Defendant alleges that he was walking to a friend's house in the area when he heard the police yell.

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