Opinion
No. 10-1151.
April 6, 2011. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 18150-08 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE.
John Foster DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, Counsel for Appellee: State of Louisiana.
Kenneth Wayne Montgomery, Pro-Se, Lake Charles, LA.
Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
On August 8, 2008, Defendant, Kenneth Wayne Montgomery, was charged by bill of information as follows: Count 1 — possession of a controlled dangerous substance, schedule II (cocaine), with intent to distribute, a violation of La.R.S. 40:967(A); Count 2 — illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1; Count 3 — illegal discharge of a firearm, a violation of La.R.S. 14:94; Counts 5 and 6 — battery of a police officer, violations of La.R.S. 14:34.2.
Count 4 was omitted from the bill of information.
Defendant filed a pro se motion to suppress on November 20, 2008. Following a hearing on May 1, 2009, the motion was denied. On May 24, 2010, Defendant entered an Alford and Crosby plea of guilty to the amended charge of possession of cocaine in Count 1 and to two counts of battery of a police officer in Counts 5 and 6. He was sentenced that same day to two years in the parish jail for possession of cocaine and to six months in the parish jail for each count of battery on a police officer. The sentences were ordered to run concurrently with each other.
Defendant, pro se, is now before this court on appeal arguing that the trial court erred in denying his motion to suppress. We affirm.
FACTS :
On June 30, 2008, the State asserted that Defendant was found in possession of cocaine in Calcasieu Parish by officers of the Lake Charles Police Department. Further, the State asserted that Defendant, having been placed under arrest, committed battery upon two police officers with the Lake Charles Police Department.
ERRORS PATENT AND PROCEDURAL ISSUE :
In accordance with La. Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is an error patent, a procedural issue, and a potential error patent.
There was a misjoinder of offenses in the bill of information. Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances if the offenses joined are triable by the same mode of trial.
In the present case, counts one, two, and three are relative felonies and may or may not be punishable with or without hard labor and are triable by six person jury, all of whom must concur. La. Code Crim.P. art. 782. Counts five and six, which are misdemeanors, are triable by a judge only. La. Code Crim.P. art. 779. Therefore, pursuant to La. Code Crim.P. art. 493, counts one, two, and three were properly joined, but counts five and six, i.e. the misdemeanors, were improperly joined.
However, Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La. Code Crim.P. art. 495. Accordingly, review of this error is waived.
Next, there is a procedural issue. Because the misdemeanor charges are not triable by jury, the proper mode of appellate review for those offenses is an application for writ of review, rather than an appeal. La. Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction from the defendant's appeal of two felony convictions. This court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the rules of this court. This court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. Consequently, this court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.
In this case, although Defendant does not expressly indicate the battery on an officer convictions are not encompassed by the motion to suppress, the facts reflect the batteries occurred after Defendant was arrested. Therefore, the suppression issue does not involve the battery charges. Additionally, Defendant does not raise any other assignment of error regarding these misdemeanor convictions. Accordingly, we follow the holding in Turner by severing the misdemeanor convictions from the appeal and order Defendant to file a writ of review regarding the misdemeanors convictions in compliance with the Uniform Rules, Courts of Appeal, if he so desires.
Finally, there is a potential error patent regarding waiver of the right to counsel. Louisiana Code of Criminal Procedure Article 514 provides that "[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant's right to counsel, including the right to court-appointed counsel, and that he waived such right."
In this case, the minute entry of March 11, 2009, indicates the trial court granted Defendant's request to represent himself pro se, with an attorney from the Public Defender's Office in an "advisory position."
The record indicates Defendant filed a motion seeking to dismiss the Public Defender's Office and appoint standby counsel to help him get legal materials. A hearing on the motion was held on March 11, 2009, and the following pertinent exchange occurred:
MR. WILLIAMS [appointed counsel]:
I have spoken to Mr. Montgomery with regards to his understanding of proceedings in proces [sic], and I can submit to this Court that Mr. Montgomery has the necessary educational level, understanding level, in order to proceed on his own. I will bring to the Court's attention that Mr. Montgomery has filed proces [sic] motions, including a motion at the time of filing I was not aware of and I have become aware of it, particularly a motion or an appeal setting [sic] which he filed to the Third Circuit. Mr. Montgomery, from what I see, has the wherewithal to argue his matters before the Court because the Third Circuit, in part, granted in part and made peremptory in part. Subsequent to that Mr. Montgomery has even filed other motions with this Court. I don't know if all have been served to Mr. Reggie or not, but I have seen them. Therefore, based on my conversations with Mr. Montgomery, I think he's competent enough to proceed on his own, as he has requested, thus I think the Court should allow Mr. Montgomery to proceed on his own as he and I have talked about this case extensively and I feel that he has the ability to represent himself. It is his request. He knows all implications therein and I think he has the ability to do it. In addition, we had a motion for bond reduction back in October, and facts alluded to — specific fact given by the district attorney's office that Mr. Montgomery has won a previous case, I believe before another state's appellate court or supreme court; therefore, I think he has the ability to represent himself and proceed. If, in fact, if my memory serves me correct, he took that case to that supreme court on his own, then Mr. Montgomery has accomplished a feat that some other attorneys have not accomplished, therefore I think that Mr. Montgomery has the ability to proceed on his own in his proces [sic] representation.
. . . .
MR. MONTGOMERY:
Yes, excuse me, Your Honor, listening to what the prosecutor's speaking of, I'm very well aware of the law. I mean, I might not be a lawyer, I might not have a certification that says I'm one, but I used to work for a lawyer in 1994, David A. Mundis in Denver, Colorado. I've won numerous cases on my own, and according to the case of Steiner versus Massachusetts, which the United States Supreme Court says a defendant has a right to assistance of counsel, no matter how professional he or she may be, an assistant is still an assistant. The defendant has the right to supersede the authority of that assistant and conduct the proceedings himself if need be. And you also must notice that the 6th Amendment right is a two-sided coin. While I have a right to assistance of counsel I also have a right to self-representation. Now, there's plenty of United States Supreme Court Federal cases and all that, that would substantiate what I'm saying.
THE COURT:
I'm not disputing any of that, Mr. Montgomery. What I'm trying to give you is your right to represent yourself with the help of Mr. Williams, who can make sure that, for example, things you file go to the other side, get properly filed. Some of the leg work and paperwork, as you know, helps to have an office to back you up.
MR. MONTGOMERY:
Yes, sir, and —
THE COURT:
Do you have a problem with that?
MR. MONTGOMERY:
I don't have a problem with it, but, once again, I have in my motion I've written a motion to dismiss, and in that motion I even asked for substitute counsel, someone to help me get legal material.
The trial court granted Defendant's request and appointed Mr. Williams from the Public Defender's Office to assist.
The minute entry of May 1, 2009, reflects Defendant proceeded pro se at the motion to suppress with an attorney acting as an advisor. The trial court denied the motion. A review of the transcript indicates Defendant cross-examined the police officer called by the State and made arguments in support of his motion. Mr. Williams then requested Defendant be allowed to make a closing argument which the trial court refused. The trial court denied the motion based upon the officer's testimony. Later that afternoon, the trial judge reopened the motion and allowed Defendant the opportunity to make closing arguments. The trial court again denied the motion.
The minute entry of September 1, 2009, indicates that the matter of Defendant proceeding to trial pro se was taken up again. The minute entry states, in pertinent part: "[t[]he Court advises defendant of the consequences of self-representation, and defendant requests a Court-appointed attorney. The Court appoints Eugene Bouquet, Esq. to assist defendant in representation." A transcript of the proceeding reflects the following pertinent exchanges:
THE COURT:
I want to make sure you're comfortable and you understand that you're going to be your own lawyer; you're going to represent yourself from here on out, without any assistance. And if you're not comfortable with that, I'll appoint another attorney to represent you. If you are comfortable with that, I'm comfortable with it, because I think you have shown that you're certainly capable of filing motions; you understand issues, and you make arguments that are relevant to your circumstances.
So, you tell me how you feel about proceeding on your own behalf.
. . . .
MR. MONTGOMERY:
Yes, I'm comfortable with it. But like I said, I need access to legal material, case laws to the things I need —
. . . .
THE COURT:
Okay. Well, that's what I'm telling you, is the Public Defenders' Office is not going to be involved in your case. I allowed Mr. Williams to withdraw, and he was the only attorney from the Public Defenders' Office assigned to you.
. . . .
THE COURT:
[A]ll I'm addressing right now at this hearing is your understanding to go forward on your own, without any assistance, on your trial and to represent yourself. And what you've said to me, what you've indicated very clearly, is you wish to do so, correct?
MR. MONTGOMERY:
Yes, I do, but like I said, I need —
THE COURT:
But you need assistance from someone to get copies and access to legal —
MR. MONTGOMERY:
Exactly. And case laws that I need and all that; I have to have that.
THE COURT:
All right. Well, we're gonna — we're gonna deal with those issues. But the issue of your representation of yourself, as far as I'm concerned, is now resolved[,] and you're going to go forward completely on your own, and we're going to get a trial date.
. . . .
THE COURT:
All right. The dangers that I see, Mr. Montgomery, with you representing yourself is that you're not an attorney. It's risky for you not to have tried a case, gone to law school, had the experience that a Court-appointed lawyer would bring to your defense. So, you know, there are — there are a — — there are a lot of pitfalls out there with you trying to represent yourself[,] and you need to be aware of that. And I wouldn't recommend it, but if you're convinced that you can do an adequate job yourself, I'm going to let you do it. But as far as I'm concerned, it's not the prudent way to proceed, but you're entitled, under the law, to proceed on your own representation.
Is there anything you want to add to that, Mr. Reggie?
MR. REGGIE:
Well, I think we need to get an affirmative answer from him with regard to that, Your Honor. And there is one other issue, a second problem that I'd like to address.
THE COURT:
Okay. So, Mr. Montgomery, do you understand there are risks if you go on your own without the assistance of an attorney?
MR. MONTGOMERY:
I understand the risks, and my concern is having access to my witnesses and an investigator to do proper investigative work on my case.
. . . .
THE COURT:
Okay. All right. I'm going to appoint Mr. Gene Bouquet to assist in the representation of Mr. Montgomery.
MR. REGGIE:
And just so we're clear, Your Honor, is he — is he standing in the same way the Public Defenders' Office was standing in, just to assist?
THE COURT:
Yeah, to assist. That's —
MR. MONTGOMERY:
And give me the legal material and stuff that I need?
THE COURT:
That's what assist means. He's going to assist you in any way you need assistance.
MR. MONTGOMERY:
Then —
THE COURT:
But you're still — you're primary — you know, you're going to call the shots because I know that's what you want to do, correct?
MR. MONTGOMERY:
That's the only way to do it because I'm being railroaded.
THE COURT:
No. You can — you can represent yourself, or you can have an attorney represent you. You know, that's your decision. And I suggest you meet with Mr. Bouquet[,] and you decide whether you're going to want him to be your spokesman and handle the case as a full-blown attorney.
The minute entry of May 24, 2010, indicates Defendant proceeded pro se with an attorney present to assist him. The minute entry reflects Defendant entered a guilty plea to possession of cocaine and to two counts of battery on a police officer, and Defendant's sentences were imposed. The transcript of the guilty plea proceeding indicates Defendant entered an Alford and Crosby plea to the amended charge of possession of cocaine, one count, and battery on an officer, two counts. The State dismissed the remaining charges. An attorney was present to assist Defendant. In State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, this court explained, in pertinent part:
In State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86, this court stated:
Before being allowed to represent himself, a criminal defendant must knowingly and intelligently waive his constitutional right to counsel. State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir. 1991), writ denied, 613 So.2d 969 (La. 1993).
A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI; La.Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir. 1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La. 1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La. 1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La. 1980). However, the record must establish that the accused knew what he was doing and that his choice was made "with eyes open." Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant's literacy, competency, understanding and volition, i.e.[,] was defendant's waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. Mitchell, 580 So.2d 1006; Smith, 479 So.2d 1062; State v. Adams, 526 So.2d 867 (La.App. 3 Cir. 1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir. 1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir. 1989), writ denied, 572 So.2d 85 (La. 1991).
The correctness of granting a defendant the right to represent himself is judged by the record made in recognizing his right to do so, not by what happens in the course of his self-representation. State v. Dupre, 500 So.2d 873 (La.App. 1 Cir. 1986), writ denied, 505 So.2d 55 (La. 1987). Louisiana courts have applied this standard to cases where trial courts have allowed hybrid representation: hired or appointed counsel was not dismissed and remained to assist that defendant in his self-representation. See State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1; State v. McCartney, 96-58 (La.App. 3 Cir. 10/9/96), 684 So.2d 416, writ denied, 97-508 (La.9/5/97), 700 So.2d 503; State v. Penson, 630 So.2d 274 (La.App. 1 Cir. 1993).
Id. at 1231-32 (alteration in original).
Violation of a defendant's right to counsel is reversible error not subject to a harmless error analysis. State v. Haider, 00-231 (La.App. 3 Cir. 10/11/00), 772 So.2d 189; State v. Santos, 99-1897 (La. 9/15/00), 770 So.2d 319. In Santos, 770 So.2d at 321, the court explained in pertinent part:
A trial judge confronted with an accused's unequivocal request to represent himself need determine only whether the accused is competent to waive counsel and is "voluntarily exercising his informed free will." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. In this context, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993) (footnote omitted).State v. Robinson, 08-820 (La.App. 1 Cir. 6/4/10), 42 So.3d 435, is very similar to the present case. In Robinson, the defendant requested to represent himself, the request was granted, and the defendant pleaded nolo contendere and reserved his right to appeal any errors by the trial court regarding pretrial motions pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). On appeal, one of the assignments included that the trial court erred and abused its discretion in permitting him to represent himself, while unlawfully limiting his ability to prepare for trial and defend himself at trial. The appellate court found the error lacked merit. The defendant filed a pro se writ application to the supreme court, which granted defendant the following relief:
State v. Robinson is an unpublished opinion bearing docket number 08-820 (La.App. 1 Cir. 2/13/09).
Granted in part. This case is remanded to the court of appeal to address specifically defendant's assignment of error that the trial court erred by permitting him to assert his right to self-representation without assuring itself that defendant made a knowing and intelligent waiver of his right to counsel because "he kn[ew] what he [was] doing and his choice [was] made with eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (internal quotation marks and citation omitted); State v. LaFleur, 391 So.2d 445, 448 (La. 1980) ("There should be some indication that the trial judge tried to assess the defendant's literacy, competency, understanding and volition before he accepted the waiver of counsel.") (citation omitted).
State v. Robinson, 09-628 (La. 12/17/09), 23 So.3d 926. On remand, the court held the assignment lacked merit, finding in pertinent part:
In the instant case, on July 3, 2007, at arraignment with the benefit of appointed counsel, defendant was advised of the nature of the charge against him, of the nature of the proceedings, and of his right to counsel. His age was judicially determined to be 36. He was formally arraigned and pleaded not guilty.
On July 17, 2007, defendant filed pro se motions requesting documents, moving for self-representation "to control his own discovery," and seeking to be held in parish prison pending disposition of his case. At the hearing on the motions, defense counsel advised the court that defendant was moving for self-representation. The trial court cautioned defendant: "Mr. Robinson, do you want to represent yourself in this case because if you're going to represent yourself in the case, I'm going to take [defense counsel] off the case and let you represent yourself if you think you're qualified to do that." Defendant replied "Yes, sir." He further stated that he was aware that defense counsel had filed several motions for several documents, but explained that he needed particular documents for a certain defense. Defendant indicated that he was presently serving time for aggravated burglary. The trial court granted the motion for self-representation.
On January 15, 2008, defendant wrote to the trial court, requesting a hearing and indicating that, due to the denial of relevant discovery and the exclusion of his key witnesses, he felt that it was in his best interests to plead guilty.
At a hearing on January 22, 2008, the court indicated that following discussions in chambers, the court understood that defendant wished to avail himself of a plea offer and reserve his right to appeal any errors concerning pretrial motions. Defendant replied, "Yes, sir." Thereafter, in response to questioning by the court, defendant testified he was 37 years old, had completed the eleventh grade, could read and write (the court also noting that defendant had filed many pro se motions), and had previously been employed at American Waste. Defendant acknowledged that he was representing himself at his own request after counsel had been appointed to represent him. He further acknowledged that under the plea offer, the state would not institute habitual offender proceedings against him, and he would be sentenced to one year at hard labor to run consecutively with any other time being served.
After a thorough review of the record and the applicable jurisprudence, we find no violation of Faretta or LaFleur in this matter. The record indicates that defendant wished to represent himself in this uncomplicated matter for tactical reasons, i.e., "to control his own discovery" and "[to] be able to control [his] defense." He moved for self-representation at a pretrial stage of the proceedings and entered into a favorable plea bargain, while reserving his right to challenge any errors concerning pretrial motions. The trial court granted defendant's unequivocal request to represent himself after cautioning him that if he represented himself he would lose the benefit of counsel. At that time, the court had the benefit of numerous pro se motions filed by defendant demonstrating his literacy, competency, and understanding. Defendant also had extensive prior experience with the criminal justice system. He advised the trial court that he was serving a sentence for aggravated burglary, and the record reflects that in addition to his arrest for the instant offense, he had seven prior arrests for a total of sixteen offenses.
Robinson, 42 So.3d at 438-39 (alterations in original).
In State v. Daigle, 07-928 (La.App. 3 Cir. 1/30/08), 974 So.2d 869, this court explained, in pertinent part:
In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493; State v. Pickett, 99-532 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 188.
Daigle, 974 So.2d at 874 (quoting State v. Frisella, 03-1213, p. 6 (La.App. 5 Cir. 2/23/04), 868 So.2d 871, 875).
At arraignment and at the preliminary hearing, Defendant was represented by appointed counsel. Defendant filed a pro se motion seeking to dismiss the Public Defender's Office and a motion seeking to represent himself. At the initial hearing on the pro se motion for self-representation, the trial court did not question Defendant regarding his competency. However, as noted above, Defendant's attorney expressed Defendant's competency level in legal issues and his knowledge of the implications. Moreover, Defendant informed the trial court that he had worked for an attorney in Colorado and had won numerous cases. The record reflects Defendant filed numerous pro se pretrial motions and argued those motions in which the trial judge presided. Specifically, he filed a pro se motion to suppress. At the hearing on the motion, he cross-examined the State's witness and made closing arguments. Thus, we find that the record supports Defendant was competent to waive his right to counsel.
Next, the record does not indicate that at the initial hearing the trial court warned Defendant of the dangers and disadvantages of self-representation. Moreover, at this hearing, Defendant did not expressly state he was waiving his right to counsel. However, the trial court informed Defendant of the dangers and disadvantages of self-representation at the September 1, 2009 hearing, before Defendant entered a plea in May 2010. At the September 1, 2009 hearing Defendant said he understood the risk and wanted court-appointed assistance.
As noted by this court in Porche, 924 So.2d at 1232 (citations omitted), "there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. However, the record must establish that the accused knew what he was doing and that his choice was made 'with eyes open.'"
In this case, the record indicates that Defendant's waiver of counsel was competent and voluntarily made "with eyes open"; thus, there is no error.
ASSIGNMENT OF ERROR :
Defendant asserts that the trial court erred in denying his pro se motion to suppress, a denial that "was one of incompetence, bias[,] and racially prejudice [sic] towards the defendant. . . ." Defendant complains that the trial court: 1) prevented him from finishing his questioning of the State's witnesses; 2) refused, denied, and/or neglected to allow him to call any witnesses on his own behalf or present evidence; 3) refused, denied, ignored, neglected, and/or failed to order the State to turn over police in-car camera tapes; and 4) refused denied, ignored, neglected, and/or failed to order the State to produce other officers and witnesses to the alleged crime.
With regard to the merits of his motion, Defendant agues that "the officers resorted to 'trickery', 'guile' and 'force'" to gain entry into his house. Defendant maintains there were no exigent circumstances, nor did the officers investigate the situation before kicking down his door. Defendant adds that the officer admitted to no trustworthy information that someone was inside his house or in danger. Lastly, Defendant makes the following assertions:
1. He did not have to answer his door for anyone;
2. He was in the back room of his house, and thus, it was not possible for anyone to hear anything standing outside in front of his home;
3. He was home alone, and thus, the officer was lying about hearing voices from inside his home;
4. Even if the officer heard voices, this did not justify forcibly kicking in his door; and
5. The officer never stated that the voices he heard were of someone in distress or in need of medical or police assistance.
This court discussed the standard applicable to the review of rulings on motions to suppress in State v. Robertson, 06-167, p. 7 (La.App. 3 Cir. 7/16/08), 988 So.2d 294, 300, writ denied, 08-2301 (La. 9/4/09), 17 So.3d 950 (quoting State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La. 5/28/99), 743 So.2d 658), as follows:
When a trial court rules on a defendant's motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court's ruling, unless the trial court's conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La. 1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir. 1992), writ denied, 617 So.2d 1180 (La. 1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).
Additionally, "[t]he State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La. Code Crim. Proc. art. 703(D)." State v. Hunt, 09-1589, pp. 6-7 (La. 12/1/09), 25 So.3d 746, 752.
As noted by the court in State v. Jackson, 08-286, pp. 7-8 (La.App. 4 Cir. 4/29/09), 11 So.3d 524, 531, writ denied, 09-1244 (La. 1/29/10), 25 So.3d 830:
Generally, searches may be conducted only pursuant to a warrant which has been issued by a judge on the basis of probable cause. U.S. Constitution, Amendment 4; Louisiana Constitution Article 1 § 5; C.Cr.P. Article 162; State v. Brady, 585 So.2d 524 (La. 1991). Police generally need a warrant to enter a home, but "warrantless searches will be allowed when police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant." United States v. Lenoir, 318 F.3d 725, 730 (7th Cir. 2003). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a protected area that, without those exceptional circumstances, would be unlawful. State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982).
A recognized exception to the warrant requirement for entry into a building is a quick search of the premises to determine the presence of persons in need, the presence of a perpetrator who might still remain on the premises, or to prevent the destruction of evidence. Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). Likewise, an intrusion of a protected area is justified if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La. 1979).
In State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709, writ denied, 96-2352 (La. 2/21/97), 688 So.2d 522, the court described exigent circumstances as "[e]xamples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982)."
In his pro se motion to suppress, Defendant maintained that the police did not have a reasonable belief that he was armed or have probable cause to search his residence without a warrant, relying only on the word of a known crack cocaine addict and prostitute. Additionally, Defendant argued that officers could have prevented his escape by guarding the front and back door of his home that was already secured with burglar bars and surrounded by open property. Defendant also argued that the search warrant was not only overbroad with catch-all phrases but was the sole product of the first illegal search.
At the hearing on the motion, the State called its only witness, Officer Kevin Hoover. Officer Hoover testified that he was dispatched to the scene in reference to a report of shots fired and was the first officer on the scene. When he pulled up to the residence, he observed a black female crying hysterically. The female, identified as Angie Johnson, was bleeding from the lip and had redness on her neck and arms. Ms. Johnson reported that she had been held all night in a nearby residence and that the offender tried to shoot her. Ms. Johnson commented to Officer Hoover that she and another female had been picked up earlier in the night, but she would not say if anyone else was in the house.
After Ms. Johnson identified the home where the alleged offenses occurred, Officer Hoover, along with other officers that had arrived, walked up to the front door of the house which was closed. Officer Hoover could hear muffled voices from inside the house and sounds that he described as "a lot of moving around." The officers attempted to make contact by knocking on the door and identifying themselves as police officers.
When Officer Hoover confirmed from another witness that a gun had been fired, the officers took action. After clearing it with their supervisor, the officers entered the residence. Knowing that shots were fired from the residence and that someone else could have been in the residence, Officer Hoover maintained there was not enough time to get a search warrant.
After officers breached the door, Officer Hoover saw Defendant coming from the back of the house. Defendant was ordered numerous times to place his hands in the air and to get on the ground, but he violently resisted. Defendant was eventually taken into custody.
Although represented by counsel at the hearing, Defendant, not defense counsel, cross-examined Officer Hoover. Officer Hoover stated that he did not take photographs of Ms. Johnson's injuries. The in-car camera in Officer Hoover's vehicle was recording at the time. Officer Hoover, however, did not bring the recording to court because it was stored on a hard drive in the vehicle.
Officer Hoover testified that when Corporal Fleming knocked on Defendant's door, he did not get a response. They could only hear shuffling around and muffled voices. Officer Hoover maintained that they kicked in Defendant's door because they feared for the life of anyone that may have been in the residence. The fear was based on Ms. Johnson's report and because she indicated at some point that another female, Fecilia Pappion, was still in the residence.
When officers entered Defendant's home, only Defendant was inside. Officer Hoover surmised that the source of the muffled voices heard inside the home may have been Defendant talking on his cellular phone.
Next, Defendant attempted to attack the credibility of Officer Hoover's testimony by showing that Officer Hoover had not only searched his home without a warrant but also his vehicle. Officer Hoover confirmed that upon entry to the home, Defendant was uncooperative and would not tell them his name. According to Officer Hoover, however, he learned of Defendant's name from his identification located in his back pocket, not from inside his car. With regard to Defendant's vehicle, Officer Hoover testified that a search warrant was obtained for his vehicle and all surrounding property. The vehicle was linked to Defendant after the fact by the license plate.
After denying the motion, the trial court asked Defendant if he had any other motions to be heard. Counsel for Defendant subsequently requested that Defendant be allowed time to make a closing argument. The following exchange occurred:
THE COURT:
You know, he's made his closing argument. I'm not going to hear any more. I'm just not going to. It's a waste of time. And, you know, he's had his say. He's had a witness.
MR. MONTGOMERY:
But, Your Honor — Your Honor?
THE COURT:
I'm not going to hear it. Are there any others motions —
MR. REGGIE:
Not at this time.
THE COURT:
— this morning?
MR. MONTGOMERY:
Are you denying my motion —
THE COURT:
Okay.
MR. MONTGOMERY:
— to suppress?
THE COURT:
Yes, sir. Motion denied.
MR. MONTGOMERY:
[U]nder what grounds, though?
THE COURT:
Motion denied. Because you didn't — the — your proof is insufficient. There's no — nothing to —
MR. MONTGOMERY:
Your Honor, how you going to say my proof is insufficient when you don't even give me a chance to even finish showing about my proof is insufficient.
THE COURT:
I gave you a chance, Mr. —
MR. MONTGOMERY:
They had no search warrant, Your Honor.
THE COURT:
I gave you a chance.
MR. MONTGOMERY:
They kicked down my door illegally in violation of my Constitutional Right to the Fourth Amendment.
THE COURT:
I've heard the evidence. I've considered it. I'm denying the motion. I've considered your arguments. You've tried to make some points. I considered those.
MR. MONTGOMERY:
You did not consider it, Your Honor.
THE COURT:
Hang on, Mr. Montgomery.
MR. MONTGOMERY:
You're not even looking at the case laws [sic] that substantiate it.
THE COURT:
I understand what the law is. I've considered the law as well. You have not satisfied your burden on the motion to suppress, period.
MR. MONTGOMERY:
My burden — the burden is on the State to prove —
THE COURT:
Well, you —
MR. MONTGOMERY:
— that they had exigent circumstances kicking that door.
THE COURT:
And they —
MR. MONTGOMERY:
The burden — they did not prove that — that burden.
THE COURT:
They did. They proved it.
MR. MONTGOMERY:
No, they did not, Your Honor.
THE COURT:
Yes, sir. They've proven it.
MR. MONTGOMERY:
How you consider they proved it? I mean, you got to — Your Honor, now, I can tell that this — this now is being straight up railroaded now. How did they prove that? They had nothing, Your Honor.
THE COURT:
Hang on. The officer's testimony that we just —
MR. MONTGOMERY:
Where is [sic] the rest of the officers that were there?
THE COURT:
You're not going to — you're not going to interrupt me anymore. You're going to be taken out. If you want to hear my reasons, I'm going to give them to you. If you don't want to hear my reasons and you just want to yell at me, then we're going to take you out. Do you want to hear my reasons?
MR. MONTGOMERY:
Yes, sir.
THE COURT:
The officer just testified in detail as to the facts of their arriving at the scene, talking to witnesses, talking to you. That proves it. Proof is sufficient. Motion denied. Remove the defendant from the courtroom.
MR. WILLIAMS:
May I request the proceedings — a copy of the proceedings, Your Honor?
THE COURT:
You may.
MR. MONTGOMERY:
And I move for a leave to file interrogatory [sic] appeal to the Third Circuit. That's all I'll do.
MR. REGGIE:
We still need him in the back because we have other motions that we're going to hear later on today.
Thank you, Officer Hoover.
MR. MONTGOMERY:
I can see this — this Court is just a kangaroo ass court. This whole system is a kangaroo. Ain't nothing.
MR. REGGIE:
Thank you.
MR. MONTGOMERY:
Y'all ain't heard the last of me. I promise you that. F___k that shit.
Considering the evidence adduced at the hearing, we find that the State proved that the officers' intrusion into Defendant's home was justified. In light of the reports of gunshots and Ms. Johnson's allegations upon their arrival at the scene, the officers needed to take immediate action to secure the safety of anyone in the home and to avoid a possible violent confrontation potentially harmful to the officers and the public. The record also indicates that the officers carefully considered the options by first obtaining approval from their supervising officer before entering Defendant's residence.
With regard to Defendant's remaining assertions, the record does not support his claims of racial bias or prejudice or indicate that he was not allowed to finish questioning Officer Hoover or present his own case. Further, the trial court had no authority to order the State to produce additional testimony to satisfy the burden of proof herein. The issue involving the State's production of in-car camera tapes is not the subject of Defendant's motion to suppress and is not discussed herein. Defendant does not challenge the officers' actions once inside his home, and thus, we will not address any issues regarding same.
For reasons stated, we find that there was no error in the trial court ruling denying Defendant's motion to suppress.
DECREE :
Defendant's convictions and sentences are affirmed. AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules — Courts of Appeal, Rule 2-16.3.