Opinion
2021 KA 0493
02-25-2022
STATE OF LOUISIANA v. CHRISTOPHER McREA
Scott M.Perilloux Counsel for Appellee District Attorney Brett Somme Assistant District Attorney Russell S. Stegeman Counsel for Defendant/Appellant Christopher McRea
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket No. 1702078F Honorable William S. Dykes, Judge Presiding
Scott M.Perilloux Counsel for Appellee District Attorney Brett Somme Assistant District Attorney
Russell S. Stegeman Counsel for Defendant/Appellant Christopher McRea
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
McCLENDON, J.
Defendant, Christopher McRea, was charged by bill of information with four counts of video voyeurism, in violation of LSA-R.S. 14:283, and twenty counts of pornography involving juveniles (victim under the age of thirteen years), in violation of LSA-R.S. 14:81.1. Defendant filed a motion to suppress his statement. Following a hearing on the matter, the motion was denied. Defendant subsequently withdrew his not guilty pleas and entered nolo contendere pleas to all charges under Crosby, reserving his right to challenge the trial court's ruling on the motion to suppress. See State v. Crosby, 338 So.2d 584, 588 (La. 1976). For each count of video voyeurism, defendant was sentenced to two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. All of those counts were ordered to run concurrently. For each count of pornography involving juveniles, defendant was sentenced to ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. All of those counts were ordered to run concurrently. Further, Count 1 of video voyeurism was ordered to run consecutively to count 5 of pornography involving juveniles. Defendant now appeals, designating four assignments of error. We affirm the convictions and sentences.
The "McRea" spelling is used because this is how defendant's name appears in the bill of information. It should be noted, however, that defendant is referred to as "McRea" or "McRae" throughout the record.
FACTS
Because defendant entered a plea of nolo contendere to all counts, the facts were not established.
ASSIGNMENTS OF ERROR NOS. 1, 2, and 3
In these related assignments of error, defendant argues that his inculpatory statement/confession was not free and voluntary. Specifically, he contends, respectively, that the trial court erred in failing to suppress a statement involuntarily given; the State failed to show the statement was given freely and voluntarily and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises; and the trial court's finding that the statement was voluntarily made was not supported by the evidence beyond a reasonable doubt.
Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R.S. 15:451. Confessions obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law. State v. Brown, 481 So.2d 679, 684 (La.App. 1 Or. 1985), writ denied, 486 So.2d 747 (La. 1986). Nevertheless, the voluntariness of a confession is determined by the totality of the circumstances, with the ultimate focus on whether the statement was the product of an essentially free and unconstrained choice or the result of an overborne will. State v. Turner, 16-1841 (La. 12/5/18), 263 So.3d 337, 399, cert, denied.__U.S.__, 140 S.Ct. 555, 205 L.Ed.2d 355 (2019). 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, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. State v. Anderson, 06-2987 (La. 9/9/08), 996 So.2d 973, 994, cert, denied, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009). However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751. The trial court must consider the totality of the circumstances in determining whether or not a confession is admissible. Anderson, 996 So.2d at 995. The direct testimony of the interviewing police officer can be sufficient to prove a defendant's statement was freely and voluntarily given. See State v. Sims, 310 So.2d 587, 589-90 (La. 1975); State v. Washington, 540 So.2d 502, 507-08 (La.App. 1 Cir. 1989).
Although the burden of proof is generally on the defendant to prove the grounds recited in a motion to suppress evidence, such is not the case with the motion to suppress a confession. In the latter situation, the burden of proof is with the State to prove the confession's admissibility. LSA-C.Cr.P. art. 703D. The State must prove beyond a reasonable doubt that the confession was made freely and voluntarily. State v. Seward, 509 So.2d 413, 417 (La. 1987). See also State v. Smith, 409 So.2d 271, 272 (La. 1982); State v. Smith, 16-1284 (La.App. 1 Or. 4/12/17), 2017 WL 1378237, *9 (unpublished). Therefore, if the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the State to rebut these allegations specifically. State v. Blank, 04-0204 (La. 4/11/07), 955 So.2d 90, 103, cert, denied. 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).
In this matter, the hearing on the motion to suppress established that defendant was contacted at his home in Hammond on the morning of April 5, 2017, by David Ferris, Special Agent with the Cyber Crimes Unit of the Louisiana Attorney General's Office. Agent Ferris was with other law enforcement personnel, including Special Agent Stephen Dean with Homeland Security Investigations. Defendant was at home with his two children, an eight-year-old and a nine-year-old. Defendant shared joint custody of the children. Agent Ferris, who handles internet computer-based investigations dealing with child exploitation, informed defendant that he was executing a search warrant at his home for child pornography on his computer or other electronic items. Defendant was Mirandized and further explained his rights via a Miranda rights form, which he signed.
Agent Ferris interviewed defendant for about an hour. Defendant denied any knowledge of downloading or possessing child pornography. Realizing at this point in time that defendant was not going to admit to anything, Agent Ferris concluded the interview and went to another room to assist the other agents in the search of defendant's electronics. Agent Dean stayed with defendant in his bedroom.
About thirty minutes later, one of the agents informed Agent Ferris that defendant wanted to talk to him. Agent Ferris was informed by Agent Dean that he (Agent Dean) had advised defendant that everything that he possessed on his electronic items would be found eventually and that it would be better if what was going to be found came from defendant. When Agent Ferris spoke to defendant a second time, defendant made several admissions regarding what would be found on his electronic devices, including child pornography and cameras that had been set up in the house for video voyeurism. Some of the videos contained his own children and friends of his children. Defendant assisted Agent Ferris in identifying the children in those videos. Agent Ferris learned defendant hid cameras in his bathroom.
Agent Ferris could not recall if Agent Dean was the person who specifically told him that the defendant wanted to speak to him again.
Defendant argues in his brief that the State failed to show that his inculpatory statement to Agent Ferris was given freely and voluntarily. According to the defendant, during the thirty-minute period when Agent Ferris was outside of the room assisting the other agents, Agent Dean used a false promise or inducement to get defendant to confess to the possession of child pornography. Specifically, defendant suggests that he was compelled to make the inculpatory statement because Agent Dean told him that he could lose custody of his children.
The two statements by the defendant were recorded. The break between the statements, where Agent Dean was with the defendant, was not recorded.
At the hearing on the motion to suppress, defendant testified that Agent Dean brought him into the hallway, which was near his daughter's bedroom where both of his children were. Defendant stated he could hear his children asking where their father was and what was going on. According to defendant, Agent Dean told him that there were files on his computer, that he was guilty and would be going to jail, and that he would lose his children. Defendant testified that Agent Dean told him that if he confessed, they would just give him classes, he would not go to jail, and he would get his children back. Defendant stated that he "decided to go ahead and just give them a confession just so I could get my children."
Agent Dean testified at the hearing on the motion to suppress that he did not investigate defendant's case, but was just assisting Agent Ferris at defendant's house. Agent Dean did not know defendant nor had any real knowledge of him before the search warrant was executed. Agent Dean testified that the day he spoke to defendant was two years prior to the hearing and, as such, he did not remember the whole conversation. Agent Dean remembered that he was standing in the doorway while talking to defendant. He remembered defendant being concerned about his children. Agent Dean made it clear that he never told defendant that he would get probation or that he would take his children away. Agent Dean explained that he would never tell a suspect that if he did a certain thing, i.e., cooperated, he would receive this or that benefit. He also testified that he made no promises to defendant that defendant could take classes, would not have his children taken away, or would be given probation, if he confessed. While not recalling his exact conversation with defendant, Agent Dean testified that, in general, he will inform a suspect that the worst-case scenario is he will go to jail, and the best-case scenario is he will not go to jail. Other than this, however, there would be no promises made. Defense counsel did not cross-examine Agent Dean.
In denying the motion to suppress the statement, the trial court stated, in pertinent part:
I find it wasn't necessary to re-[M]irandize the defendant. No threats were made to the defendant. Promises, according to the defendant, were made to him if he confessed. The state says the case law allows the officer to make representations to the defendant during questioning and interview times and it doesn't even sound from the witness's testimony that that was done. Witness stated he's with the Homeland Security Investigation Unit, Federal Agency. He's spent twenty three years with the Federal Government and he has never had a complaint while working with the Federal Government. Witness says he did not tell, or did not remember him telling the defendant he would get probation, did not remember making any promises to the defendant. Witness said he does let defendants know the possibilities of what may happen in the future for them as far as charges, time, and so on. And that's just not - the defendant's self-serving testimony is not enough to overcome that testimony, as well as Officer [Ferris's] testimony. I don't find any threats were made. So, I believe in time there was a knowing and voluntary waiver of the defendant's rights both times between the two different times of his interview, recorded interview. So that's my ruling.
We find no reason to disturb the ruling of the trial court. There is nothing in the record before us that suggests defendant was intimidated, threatened, or induced to confess based on fear or duress that he could go to jail or that his children might be turned over to the custody of the State.
Defendant has failed to point to any instances of inappropriate tactics or conduct by Agent Ferris or Agent Dean. Any comments to defendant by Agent Dean that he needed to tell the truth, or that he could help himself or his family by confessing, were not promises or inducements designed to extract a confession. See State v. Petterway, 403 So.2d 1157, 1160 (La. 1981); State v. Dison, 396 So.2d 1254, 1258 (La. 1981). Further, a confession is not rendered inadmissible because officers "exhort or adjure" an accused to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or which implies a promise of reward. State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 31, cert, denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). See State v. Peters, 546 So.2d 829, 832 (La.App. 1 Cir.), writ denied. 552 So.2d 378 (La. 1989).
Defendant's claims that he was promised a reduced sentence or no jail time and that he would maintain custody of his children in exchange for his confession were specifically rebutted by the State. The trial court, in denying the motion to suppress the statement, found that the testimony of the agents was more credible than the testimony of defendant and that no promises were made. See State v. Flowers, 16-0130 (La.App. 1 Cir. 9/19/16), 204 So.3d 271, 278-80, writ denied, 16-1871 (La. 9/6/17), 224 So.3d 983; State v. Batiste, 06-824 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, 634, writ denied, 07-0892 (La. 1/25/08), 973 So.2d 751.
Hence, the trial court found no agent, who spoke with defendant on the day he confessed, ever threatened, coerced, or mistreated him in any way, or promised him anything. The record before us clearly establishes that defendant was advised of his Miranda rights prior to making a confession; that at no time did defendant ask for a lawyer or invoke his right to remain silent; and that defendant's confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. The trial court's determination on credibility was supported by the record.
Accordingly, the trial court did not err or abuse its discretion in denying defendant's motion to suppress his statement. These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, defendant argues that the trial court erred in granting a continuance of the matter.
Since the hearing had already commenced, defendant actually sought a recess, not a continuance. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. LSA-C.Cr.P. art. 708. A motion for a recess is evaluated by the same standards as a motion for a continuance. State v. Douglas, 10-2039 (La.App. 1 Cir. 7/26/11), 72 So.3d 392, 401, writ denied. 11-2307 (La. 5/25/12), 90 So.3d 406 and writ denied. 12-2508 (La. 5/3/13), 115 So.3d 474.
Agent Dean did not testify at the initial setting of the motion to suppress hearing. At the conclusion of this hearing, following argument, the prosecutor asked the trial court to hold open the hearing so that Agent Dean could testify, given defense counsel's argument that defendant was induced to confess by Agent Dean. The prosecutor informed the trial court: "And respectfully, if we could keep it open because I didn't even know what the Motion to Suppress was on until today. So, respectfully, [Agent Dean] wasn't called because we didn't know with specificity, what exactly he was wanting to suppress until we walked in." The continuance was granted, and Agent Dean was the only witness to testify at the second, or continued, suppression hearing.
A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. LSA-C.Cr.P. art. 707. An oral motion for a continuance, however, is permitted when the occurrences that allegedly made a continuance necessary arose unexpectedly. See State v. Brown, 95-0755 (La.App. 1 Cir. 6/28/96), 677 So.2d 1057, 1062; see also State v. Bertrand, 381 So.2d 489, 491 n.l (La. 1980) (wherein the court noted that a motion for a recess "need not be in writing or comply with the formal requisites of a motion for a continuance").
The decision to grant or deny a motion for continuance rests within the sound discretion of the trial court; a reviewing court will not disturb a trial court's determination absent a clear abuse of discretion. LSA-C.Cr.P. art. 712; State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229. The purpose of a continuance is to prevent prejudicial surprise. State v. Guidroz, 98-377 (La.App. 5 Cir. 10/14/98), 721 So.2d 480, 488, writ denied, 98-2874 (La. 2/26/99), 738 So.2d 1061. The instant matter was a pretrial hearing on a motion, and not a trial. Further, the record is devoid of any evidence that the granting of the continuance prejudiced defendant. See State ex rel. B.M., 00-2562 (La.App. 4 Cir. 11/29/00), 774 So.2d 1042, 1045. See also State v. Scarborough, 18-1791 (La. 11/14/18), 256 So.3d 265, 266 (per curiam); State v. Telford, 384 So.2d 347, 349 (La. 1980) (observing that defendant made no showing, beyond the mere assertion that another witness was permitted to testify, as to how he was prejudiced). Accordingly, we find the trial court did not abuse its discretion in granting the continuance. This assignment of error is without merit.
CONCLUSION
Considering the foregoing, we affirm defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.