# State v. Leger

> Supreme Court of Louisiana · July 10, 2006 · 936 So. 2d 108

URL: https://www.frixlaw.com/law-library/cases/1592017

## Case

- **Court:** Supreme Court of Louisiana
- **Decided:** July 10, 2006
- **Citations:** 936 So. 2d 108; 2006 WL 1883421
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Traylor
- **Cited by:** 393 later opinions in the Frix Law Library

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## Opinion text

936 So.2d 108 (2006)
STATE of Louisiana
v.
Donald Lee LEGER, Jr.
No. 2005-KA-0011.
Supreme Court of Louisiana.
July 10, 2006.
Rehearing Denied September 1, 2006.
*117 Capital Appeals Project, Jelpi P. Picou, Jr., Marcia A. Widder, Letty S. Digiulio, for appellant.
Charles C. Foti, Jr., Attorney General, J. Phil Haney, District Attorney, Walter J. Senette, Jr., James R. McClelland, Assistant District Attorneys, for appellee.
TRAYLOR, Justice.
On February 5, 2002, a St. Mary Parish grand jury indicted the defendant, Donald Lee Leger, Jr., for the December 11, 2001 first degree murder of Troy Salone, in violation of La. R.S. 14:30. Other, non-capital charges, were included as separate counts in the indictment. [1] On January 6, 2004, the state moved to sever the non-capital offenses charged in the indictment and proceeded to trial only on the one count of first degree murder. Trial commenced with jury selection beginning on January 12, 2004. On January 20, 2004, the jury returned a unanimous verdict of guilty as charged.
After a penalty phase hearing, the same jury unanimously recommended a sentence of death after finding the following aggravating *118 circumstances: (1) that the defendant was engaged in the perpetration or attempted perpetration of an aggravated kidnapping or second degree kidnapping; (2) that the defendant was engaged in the perpetration or attempted perpetration of an aggravated burglary; and (3) that the defendant created a risk of death or great bodily harm to more than one person. La.C.Cr.P. art. 905.4(A)(1) and (4). On February 6, 2004, the trial court imposed the sentence of death in accordance with the jury's verdict.
The defendant now brings the direct appeal of his conviction and sentence to this court pursuant to La. Const. art. 5, § 5(D) [2] raising 32 assignments of error. For the reasons that follow, we find that none of the arguments put forth constitute reversible error, and affirm the defendant's conviction and sentence.
FACTS
Defendant, Donald Lee Leger, Jr., had an affair with Kimberly Zimmerman during a three or four-month period in which she was separated from her husband. The affair ended in late November, 2001, after defendant became jealous and possessive. Thereafter, defendant began threatening and harassing Zimmerman, and twice the police were summoned.
On the morning of December 10, 2001, defendant approached Zimmerman at the Wal-Mart store, where she was shopping with her infant daughter. There, Zimmerman confided to defendant that she thought she might be pregnant with his child. The two made plans to meet back at Wal-Mart later that evening to purchase a home pregnancy test.
After buying the pregnancy test, Zimmerman accompanied defendant back to his residence, where she took the test. While waiting on the results, defendant tried to persuade Zimmerman to reconcile with him and raise their baby together. However, Zimmerman insisted that she was going back to her husband and that she could not have another baby, as she already had four young children. The defendant retrieved the test result from the bathroom and brought it to Zimmerman. The test indicated that Zimmerman was not pregnant, causing the disappointed defendant to comment "I hope you're happy now." [3]
The defendant tried to persuade Zimmerman to have sex with him. When she refused, stating that she planned to reconcile with her husband, the defendant repeatedly asked her "is that your final answer?" [4] When Zimmerman affirmed that her refusal of his advances was her final answer, the defendant reached in the top drawer of his dresser for a 9 mm handgun, which he had recently purchased from a co-worker, stating "I didn't want it to come to this." The defendant pointed the gun at Zimmerman and taunted "I bet you'll make love to me now, won't you?" [5]
The defendant told Zimmerman "I know exactly where I'm going to take you. I'm going to kill you. I'm going to put you and your van in the water and nobody's ever going to find you." [6] The defendant then bound one of Zimmerman's hands with a tie wrap. When Zimmerman started to struggle, he threw her on the bed and put *119 a knee on her back in order to bind her wrists together with the tie wrap. When he was finished binding her, the defendant sat Zimmerman up on the bed, grabbed a bag of bullets in a Crown Royal bag and told her, "I can't go back to prison." [7] He then grabbed a pair of gloves.
The defendant dragged Zimmerman through the house, pausing in the kitchen to grab a knife to cut off a piece of duct tape to place over Zimmerman's mouth because she was screaming and crying. With the knife and gun in hand, the defendant brought Zimmerman outside and placed her in the passenger seat of her vehicle, a blue Ford mini-van. The defendant secured the seat belt across Zimmerman.
After driving a short distance, the defendant removed the duct tape which he had just placed over Zimmerman's mouth, telling her she had "20 minutes to talk to me." [8] The defendant told Zimmerman that he was going to kill her, or maybe he would just kill himself. He reiterated he would not go back to prison. Zimmerman pled for her life, and told defendant things she thought he wanted to hear, namely that she would stay with him and that she would not talk to police.
As Zimmerman noticed they were approaching water, she feared that her death was imminent. She managed to free her hands and jumped out of the moving van near a neighborhood where she saw a handful of homes with lights on. The defendant snatched at Zimmerman to prevent her escape but only succeeded in pulling off her sweater. The defendant followed Zimmerman out of the passenger side of the van until he realized the van was continuing to roll forward. He then re-entered the van to stop it.
Zimmermane ran from the van screaming, "God, somebody please help me" [9] and "Help, he's going to kill me." [10] Zimmerman found refuge in the home of Steven Andrade, roughly the third home down from where she jumped out of the van. After the defendant stopped the van, he jumped out chasing after Zimmerman. But he looked for her at the first residence they had stopped in front of, the trailer home of victims Evelyn and Troy Salone at 896 Verdunville Road in Franklin, Louisiana.
Just before midnight, Evelyn Salone was about to fall asleep when she heard a female screaming. Since she believed Troy was already asleep, Evelyn went to see what all the commotion was about. Outside of her home, she encountered defendant in her yard and saw the van still rolling in the road in front of her trailer. Defendant kept hollering "where is she, where is she?" [11] Not knowing who the strange man was looking for, Evelyn asked him, "Who are you looking for? ... I don't know who you're talking about." [12]
Troy Salone appeared at the door of the trailer, and asked what was going on. Defendant asked Troy "where is she?" Troy told him, "put the gun away, there's no need for a gun, put the gun away." [13] At that point, defendant pulled a gun from his waistband and pointed it at Evelyn. Evelyn assured Troy "he's not going to shoot *120 ... it'll be okay," [14] at which point, the defendant fired the gun into Evelyn's abdomen at point blank range, and she fell to the ground. Troy turned inside the trailer to call for help. Defendant followed Troy inside the trailer, and as Troy reached for the telephone, defendant shot him one time in the head, fatally wounding him.
Evelyn's 15-year-old son, Zeb LeBlanc, [15] woke up when he heard his stepfather, Troy, scream something that sounded like "Man, move that gun." [16] Zeb then heard a gunshot abut four or five seconds later. Zeb jumped out of bed and tried to load a nearby shotgun but was not able to do so because he hands were shaking. When Zeb no longer heard footsteps in the trailer, he peeked out his bedroom window. Zeb then saw Troy lying lifelessly next to the sofa, with blood coming from his head.
Zeb then heard his mother calling from outside the residence, "Troy, Troy, call 911, he shot me." [17] Zeb went outside to attend to his mother and knelt down beside her, asking her what was going on. Zeb stood up as the defendant approached again and asked Zeb, "where is she?" Zeb told defendant to "just go away, leave us alone." [18] At that, the defendant raised his gun and pointed it at Zeb and told him that he should just go back to wherever he had come from. [19] As various neighbors were beginning to come out, defendant called out one last time, "Kimberly, I'll be waiting for you at home," [20] then got back in the van and sped away.
Evelyn told Zeb to call 911, which he did, and emergency medical personnel and police were dispatched to the area. When they arrived, Evelyn immediately gave them a description of the man who shot her and her husband. Evelyn survived her injuries, but required numerous surgeries for the damage sustained by her internal organs. Troy Salone was pronounced dead at the scene. [21]
Meanwhile, from the safety of Steven Andrade's neighboring home, Kimberly Zimmerman called 911 to report that her ex-boyfriend, Donald Leger, had kidnapped her at gunpoint. After hearing gunshots, she told the dispatcher that she feared he may have shot himself. Later, she told the dispatcher that she believed the defendant had been shooting at her. [22]
The police were already on the way to the Verdunville area when they encountered the blue van speeding away. Defendant led police on a high-speed chase for approximately 30 miles through cane fields and back roads. Officers from various jurisdictions, including the St. Mary Parish Sheriff's Office, the Franklin Police Department, and the Morgan City Police Department participated in the chase. At *121 times, defendant turned out the headlights on the van, hoping to elude the authorities. Eventually, defendant pulled into the parking lot of the Morgan City Police Department and was arrested without incident.
Over the course of the ensuing day and a half, defendant made five inculpatory statements while in police custody, four to the police and one recorded telephone conversation with his brother. These statements were introduced in evidence and played for the jury. In addition, the state presented evidence seized from the defendant's residence, the blue van and the crime scene, including a used pregnancy test seized from the defendant's house, a glove seized from the rear of the defendant's truck, Zimmerman's black sweater and a picture of Zimmerman's children recovered from the Salone's yard. No gun was ever recovered but officers participating in the pursuit of the defendant saw the defendant throw something out of the van's window during the high speed chase which caused sparks on the road. In one of his statements, the defendant claimed he threw the gun in the woods and threw the knife on the road. After considering all of the evidence presented, the jury unanimously found the defendant guilty of first degree murder.
In the penalty phase of this trial, the state reintroduced all of the testimony and evidence admitted in the guilt phase of trial. The state and the defense jointly stipulated to the defendant's prior criminal record, which included prior convictions for simple burglary, forgery, disturbing the peace by fighting, simple battery, theft of over $500 and attempted simple burglary. The state then presented the testimony of Evelyn Salone, the victim's wife; Zeb LeBlanc, the victim's stepson; Diana Salone, the victim's mother; Danette Boykin, the victim's sister-in-law; Ricky Cook, the defendant's employer, who testified as to individual characteristics of Troy Salone and the impact his death had on their lives and the lives of their family members. Finally, the state presented Kimberly Zimmerman, who testified that since the defendant's incarceration for first degree murder, he had written her a letter, urging her not to testify and threatening her. The letter itself was admitted in evidence for the jury's consideration.
The defense presented the testimony of four witnesses in the penalty phase. T.A. Masena testified as to the defendant's character as a trustee when he was previously incarcerated. Kenneth LeBlanc and Kenneth Bacque testified about a prison ministry group to which they belong and how they met the defendant through that group during his previous incarcerations. They testified as to their knowledge of the defendant's strong faith and desire for a wife and children. LeBlanc also testified about the lack of parental support that the defendant received. Finally, Mark Leger, the defendant's brother, testified about their family life with an alcoholic and abusive father, culminating in the defendant being kicked out of the home at the age of 16 years. Mark Leger told the jury that the defendant did not have parental support and encouragement but had a strong faith and desire to live a productive life with a wife and children. Mark Leger also informed the jury that one of the defendant's prior convictions for simple battery concerned a fight the defendant had with his father where they were both arrested.
Following the penalty phase, the jury unanimously recommended that the defendant be sentenced to death, after finding that the defendant: (1) was engaged in the perpetration or attempted perpetration of an aggravated kidnapping or second degree kidnapping; (2) engaged in the perpetration or attempted perpetration of an aggravated burglary; and (3) knowingly *122 created a risk of death or great bodily harm to more than one person. La. C.Cr.P. art. 905.4(A)(1),(4). Thereafter, the trial court formally sentenced the defendant to death by lethal injection.
The defendant now appeals his conviction and sentence urging 32 assignments of error. [23]
LAW AND DISCUSSION
Defendant's Inculpatory Statements
Assignments of Error 1-6
In these assignments of error, the defendant asserts that inculpatory statements made while in police custody were obtained in violation of his right to remain silent and his right to obtain counsel. In addition, the defendant claims that the statements were involuntary based on his physical and mental conditions. Finally, the defendant claims that the statements, admitted at trial, should have been suppressed, and that their consideration by the jury is reversible error.
Five custodial statements are at issue in this argument. [24] The state gave pretrial notice of these statements to the defense pursuant to La.C.Cr.P. art. 768. [25] Prior to trial, the defense filed a motion to suppress statements and evidence. Acting pro se, the defendant filed several motions to suppress. After hearings held April 12, 2002 and May 31, 2002, the trial court denied the motions to suppress and determined that the custodial statements at issue were admissible in evidence at trial. [26]
Trial courts are vested with great discretion when ruling on a motion to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592 p. 5 (La.9/9/04), 884 So.2d 1176, 1179-1180 , cert. denied, 544 U.S. 977 , 125 S.Ct. 1860 , 161 L.Ed.2d 728 (2005). Although not required to do so, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing, in determining the correctness of the trial court's pre-trial ruling on a motion to suppress. State v. Sherman, XXXX-XXXX (La.10/29/04), 886 So.2d 1116 ; State v. Green, XXXX-XXXX p. 11 (La.5/22/95), 655 So.2d 272, 280 .
A chronology of the events and statements pertinent to these assignments of error reveals that, after the high speed chase, the defendant was arrested in the Morgan City Police Department parking lot by the St. Mary Parish Sheriff's Office at 12:50 a.m. on December 11, 2001. [27] The defendant exited the blue van with his hands in the air. At that time, the defendant was placed under arrest, handcuffed and informed of his constitutional rights. Sgt. Driskell and Sgt. Honse of the St. Mary Parish Sheriff's Office testified that the defendant twice interrupted Sgt. Driskell's recitation of rights to inform Sgt. Driskell that he both knew and understood his rights. [28]
*123 The record shows that Sgt. Driskell advised the defendant of his constitutional rights from memory at the time of the defendant's arrest, as follows:
... You have the right to remain silent; anything you say can and will be held against you in a court of law; you have the right to an attorney and have one with you while you are being questioned. If you cannot afford one, one will be appointed before any questioning, if you wish. With these rights in mind, you can stop answering any questions or the making of any statement until you talk to your attorney. [29]
Other than acknowledging that he understood his rights, the defendant did not make any statements at the time of his arrest. In fact, the defendant did not speak at all as Sgt. Honse transported him to the St. Mary Parish jail.
After he was transported to the jail, the defendant was placed in an interview room. Detective Riviere of the St. Mary Parish Sheriff's Office, accompanied by Detective Smith, brought a copy of a rights form into the interview room and sat down. Before Detective Riviere could review the constitutional rights on the form with the defendant, the defendant stated he had nothing to say. [30] Detective Riviere did not question the defendant and immediately left the room.
Detective Smith, who was keeping an eye on the defendant in the interview room, watched as the defendant got out of his chair and started running. Detective Smith initially thought the defendant was trying to escape. Instead, the defendant rammed his head into a wall. According to Detective Smith, the impact caused the defendant to leave his feet and land on his stomach. Detective Smith checked the defendant for vital signs and noted that the defendant lost consciousness for a little while. Upon regaining consciousness, the defendant made the unsolicited comment to Detective Smith, "she killed my baby." [31] Detective Smith stayed with the defendant until the ambulance arrived.
Acadian Ambulance records reflect that defendant's vital signs were taken at 2:15 a.m. [32] An EMT assessed a slight redness to the defendant's forehead, but no swelling. After being examined by medical personnel and offered treatment and transport, the defendant adamantly refused to go to the hospital. [33]
At approximately 4:00 a.m., the defendant was transferred to the jail at the Franklin Police Department. [34] Lt. Guillory of the Franklin Police Department, who oversees the jail, testified that the defendant was closely monitored on suicide watch due to his action of ramming his head into a wall. [35] Subsequently, the defendant made five statements which were *124 either videotaped or audiotaped which are at issue in these assignments of error.
Right to Remain Silent
With this factual background in mind, the court will now examine four of the statements to determine whether the statements were obtained in violation of the defendant's expressed right to remain silent. [36]
In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the Supreme Court
promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subject to custodial police interrogation. In sum, the Court held in that case that unless law enforcement officers give certain specified warnings before questioning a person in custody, [37] and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may in fact be wholly voluntary.
Michigan v. Mosley, 423 U.S. 96, 99-100 , 96 S.Ct. 321, 324-325 , 46 L.Ed.2d 313 (1975). In addition to showing that the Miranda requirements were met, the state must "affirmatively [show] that [the statement or confession] was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises" in order to introduce into evidence a defendant's statement or confession. La. R.S. 15:451.
The Miranda holding "protects an individual's Fifth Amendment privilege during incommunicado interrogation in a police-controlled atmosphere." State v. Taylor, XXXX-XXXX p. 6 (La.1/14/03), 838 So.2d 729, 739 , cert. denied, 540 U.S. 1103 , 124 S.Ct. 1036 , 157 L.Ed.2d 886 (2004). This court has held that " Miranda does not require that a defendant exercise his right to remain silent by any particular phrasing. In fact, the Supreme Court in Miranda stated, if the individual `indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'" Taylor , XXXX-XXXX p. 6, 838 So.2d at 739 .
"When a defendant exercises his privilege against self-incrimination the validity of any subsequent waiver depends upon whether police have `scrupulously honored' his right to remain silent." Taylor , XXXX-XXXX p. 6, 838 So.2d at 739 , citing Mosley, 423 U.S. at 104 , 96 S.Ct. at 326 . The Court identified the critical safeguard in the right to remain silent as a person's "right to cut off questioning." Mosley, 423 U.S. at 103 , 96 S.Ct. at 326 . "Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Mosley, 423 U.S. at 103-104 , 96 S.Ct. at 326 .
*125 Whether the police have "scrupulously honored" a defendant's "right to cut off questioning" is a determination made on a case-by-case basis under the totality of the circumstances. Mosley, 423 U.S. at 104-106 , 96 S.Ct. at 326-328 ; Taylor , XXXX-XXXX p. 7, 838 So.2d at 739 ; State v. Brooks, 505 So.2d 714, 722 (La.1987), cert. denied, 484 U.S. 947 , 108 S.Ct. 337 , 98 L.Ed.2d 363 (1987).
Factors going into the assessment include who initiates further questioning, although, significantly, police are not barred from reinitiating contact, ... whether there has been a substantial time delay between the original request and subsequent interrogation; whether Miranda warnings are given before subsequent questioning; whether signed Miranda waivers are obtained; and, whether the later interrogation is directed at a crime that had not been the subject of the earlier questioning. Michigan v. Mosley, 423 U.S. at 105 , 96 S.Ct. 321 , 46 L.Ed.2d 313 ; Brooks, 505 So.2d at 722 ; [State v. ] Harper, 430 So.2d [627,] at 633.
Taylor, XXXX-XXXX p. 7, 838 So.2d at 739 ; see Mosley, 423 U.S. at 103-104 , 96 S.Ct. at 326 .
First Statement
Approximately 13 hours after his arrest at 12:50 a.m. on December 11, 2001, the defendant was interrogated by the Franklin Police Department. Lt. Guillory and Agent Rupert, the defendant's parole officer, participated in questioning that lasted approximately two hours, with the final 28 minutes, from 12:45 p.m. until 1:13 p.m., recorded on videotape. Agent Rupert testified at the suppression hearing that he advised the defendant of his constitutional rights in the presence of Lt. Guillory. [38] Lt. Guillory testified that Agent Rupert reminded the defendant of his constitutional rights and that the defendant acknowledged that he understood them. [39] The videotape, for which there is no written transcript, reflects that Agent Rupert asked the defendant whether he had been advised of his rights. The video shows that the defendant nodded his head slightly to signify "yes."
The defendant told Lt. Guillory and Agent Rupert that he and his girlfriend had purchased a pregnancy test based on her statement to him that she might be pregnant, that he did not know whether or not she was pregnant and that she had told him she did not want the baby. The defendant also stated that he had just "lost it." He indicated to the officers that he did not understand what happened or why he did what he did. When pressed for further details, the defendant told Lt. Guillory and Agent Rupert that he did not want to talk about it. Despite the defendant's stated reluctance to discuss the matter, Lt. Guillory and Agent Rupert continued to question him. The defendant subsequently stated that his life was over and that he "knew where he was going." At one point, the defendant stated that he just wanted to die. When Lt. Guillory and Agent Rupert sought details, the defendant reiterated several times that he did not want to talk about it.
The videotape shows that throughout the interview, the defendant gave unresponsive answers to questioning, placed his head down on the desk or in his hands and *126 cried intermittently. The audio of the videotape is hard to understand in parts due to the defendant's lowered head and muttered speech. Throughout the questioning, however, it is possible to hear the defendant repeatedly stating that he did not want to talk. No waiver of rights form was generated during this interview.
After approximately 28 minutes, when the defendant finally became totally unresponsive to Lt. Guillory and Agent Rupert, they left and turned the interrogation over to Chief McGuire of the Franklin Police Department and Detective Sonnier of the St. Mary Parish Sheriff's Office. Chief McGuire and Detective Sonnier had been watching the earlier interrogation through a closed circuit video monitor. When the new interrogators entered the room, the defendant initially failed to respond to them. During the next portion of the videotaped interview, lasting from approximately 1:13 p.m. until 1:40 p.m., no signed waiver of rights form was obtained. Eventually, the defendant answered the officers' questions regarding his relationship with Zimmerman, the suspected pregnancy, and his bewilderment at why he did the things that he did. The defendant reiterated his belief that his "life is over." Throughout this portion of the interview, the defendant again stated multiple times that he "did not want to talk about it" and "did not want to talk anymore." Finally, the defendant stated "I want to go back to my cell ... I'm through answering questions. Can I leave?" At this point, the police terminated the interview.
We note that Agent Rupert testified at the suppression hearing that his interview with the defendant lasted two hours. Since only 28 minutes of his discussion with the defendant was videotaped, it is possible that the defendant was informed of his Miranda rights shortly before the video portion of the interview began. Regardless, the videotape shows that, when asked if he understood his rights, the defendant nodded "yes." We also note that the state concedes in brief that only the first part of the interview is admissible, up to the point where the defendant stated that he did not want to talk anymore. The state agrees that the defendant's right to remain silent under Miranda was violated at some point and that the police response of substituting interrogation teams to continue the questioning did not "scrupulously honor" the defendant's invocation of his right to cut off questioning. [40]
We agree with the state's concession. We find that Lt. Guillory and Agent Rupert failed to honor the defendant's invocation of his right to remain silent and that the defendant's statements during this portion of the interview, after he first invoked his right to remain silent, should not have been admitted in evidence. In addition, we find that the continued interrogation by Chief McGuire and Detective Sonnier did not "scrupulously honor" the defendant's invocation of his constitutional right to remain silent. The police practices on display here are specifically proscribed in Mosley , "where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind." Mosley, 423 U.S. at 105-106 , 96 S.Ct. at 327 . We hold that the trial court abused its discretion in failing to suppress the portion of the first videotaped statement after the point where the defendant first invoked his "right to cut off questioning" and in finding *127 that the first statement was admissible in its entirety.
Our finding of error does not end our inquiry, however. This court must also determine whether the error was harmless, which shall be discussed later in the analysis of these assignments of error. In addition, we must examine the subsequent statements obtained from the defendant while in custody to determine whether the state's failure to honor the defendant's right to remain silent for this first statement had a coercive effect on the latter statements.
Second Statement
On December 11, 2001, at approximately 8:30 p.m., [41] the defendant was formally booked in the Franklin Police Department booking room by Lt. Guillory and a videotape was made during that encounter. Lt. Guillory explained at trial that the reason for the delayed booking was the defendant's action of ramming his head into the wall at the St. Mary Parish jail, followed by complaints that his head hurt. Lt. Guillory had the jail nurse attend to the defendant, cleaning some cuts on his face and ear [42] and giving him liquid Tylenol. In addition, the defendant's subsequent statements that he wanted to die and that his life was over caused the police to put the defendant on monitored suicide watch, making his sleeping, eating and drinking routines noteworthy to his jailers. [43] On the videotape, Lt. Guillory is heard stating that he had not wanted to wake up the defendant earlier.
During the booking procedure, which lasted less than half an hour, Lt. Guillory presented the defendant with a waiver of rights form and had him read it to himself. Lt. Guillory specifically informed the defendant that he did not intend to obtain a statement from the defendant at that time, but wanted to ensure that the defendant knew and understood his rights. Lt. Guillory read aloud from the waiver portion of the form, which states:
I have been read this statement of my rights and understand what my rights are. [44] I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats or coercion has {sic} been used against me. [45]
After being read the waiver portion of the form, the defendant responded, "Yeah, I'm gonna need a lawyer, though." Lt. Guillory then explained to the defendant the procedure in court wherein the defendant could obtain court-appointed counsel if indigent, or could hire *128 an attorney if he had the money to do so. Significantly, Lt. Guillory concluded his explanation by stating something similar to "there's nobody that says you can't call a lawyer or something." The defendant did not continue the discussion regarding counsel, nor did he request counsel at that time.
During the remainder of the booking procedure, Lt. Guillory did not question the defendant about the crime. Instead, Lt. Guillory completed the regular booking procedures of taking a mug-shot photograph and obtaining fingerprints. Lt. Guillory offered the defendant a shower or a shave, and offered him food. The defendant wanted to know if anyone had called for him and Lt. Guillory stated he did not know.
Unsolicited, the defendant asked Lt. Guillory, "did anybody die?" Lt. Guillory responded, "yeah." Lt. Guillory told the defendant he would not speak to any of the defendant's family members who may have called until the defendant said that he could. The videotape shows the defendant musing that he would get "life, maybe worse." Lt. Guillory again offered the defendant food or asked if the defendant would like to speak with a priest or someone else. The defendant stated that he just wanted to lie down.
In assessing whether the second statement was obtained in violation of the defendant's right to remain silent, or whether the interrogation resulting in the first statement tainted this second one, we note that the time delay between the first statement and the booking procedure was almost six and a half hours and after the defendant rested. Moreover, the booking procedure is an administrative interview, unavoidable to all inmates. This was not state-initiated contact meant to interrogate the defendant about the facts of the crime. Indeed, Lt. Guillory specifically informed the defendant that he was not there to obtain a statement. The videotape shows the defendant sitting on a bench, initially shackled but later unshackled to effectuate the picture taking and fingerprinting. Lt. Guillory is sitting at a nearby computer, dressed in casual clothes and whistling or humming. Miranda warning were again discussed with the defendant, who signed the waiver of rights form.
Significantly, it was the defendant who initiated asking questions about the crime. We also note that Lt. Guillory did not follow the defendant's lead and begin interrogating him. Lt. Guillory merely answered the questions asked independently by the defendant. "Police are not obliged to ignore spontaneous and unsolicited statements by someone in custody, as long as those statements do not result from police-initiated custodial interrogation or questioning `reasonably likely to elicit an incriminating response.'" State v. Koon, XXXX-XXXX p. 7 (La.5/20/97), 704 So.2d 756, 762 , cert. denied, 522 U.S. 1001 , 118 S.Ct. 570 , 139 L.Ed.2d 410 (1997).
The rights form which the defendant had just discussed stated that the charges at that time were carjacking and aggravated kidnapping. [46] During the defendant's earlier interrogation with Chief McGuire, he was informed that the woman the defendant shot was going to live and was currently in the hospital. Lt. Guillory now confirmed for the defendant what the defendant almost certainly knew for himself, that the bullet fired into the head of Troy Salone had killed him.
After reviewing the totality of the circumstances surrounding the obtaining of the second videotaped statement from the defendant, we find that the defendant's *129 statements were not the product of custodial interrogation. Thus, the Miranda protections were not implicated. Even so, the defendant was again instructed as to his constitutional rights and made a valid waiver of his right to remain silent. Any statements made by the defendant were spontaneous and self-initiated. The trial court did not abuse its discretion in finding this statement to be admissible in evidence.
Third Statement
The next morning following the defendant's booking, December 12, 2001, Captain Broussard of the Franklin Police Department arrived at work at the jail at 7:30 a.m. On his way to check the video monitor that had been set up to record the defendant's activities while in his cell, [47] he saw the defendant sitting on the floor of his cell by the door. In casually conversing with the defendant, Captain Broussard observed that "he was making little statements about what was going on and I had asked him if he was willing to make any statements on the record." When the defendant indicated that he would, Captain Broussard contacted Chief McGuire, who accompanied Captain Broussard back to the defendant's cell. [48] Chief McGuire entered the defendant's cell, brought him coffee, sat on the bed next to the defendant, and obtained the defendant's statement. [49] Neither officer recited Miranda warnings to the defendant nor was a waiver of rights form signed at this time.
The audio recording of this interview is mostly inaudible. A time-lapse videotape of Captain Broussard's and Chief McGuire's encounter with the defendant indicates that this interview concluded at approximately 9:19 a.m. Thus, the conversation with Captain Broussard and questioning by Chief McGuire lasted less than two hours. At trial, Chief McGuire testified to the content of the unrecorded statement as follows:
He told me that he had found out that Kimberly possibly was pregnant, and that he had left a note, wanting to speak to her, the day before the incident, on the van at Wal-Mart. Later on her and him — her and Kim — him and Kim went and retrieved a pregnancy kit from Wal-Mart. He said that he didn't know what kind to pick up and had actually picked up the wrong thing, so she had to pick it up. And I asked him how much it cost, and he said, approximately ten dollars. They retrieved the pregnancy test and went to his house.
He said that after the pregnancy test was conducted, she didn't tell him or show him whether it was positive or negative.
She wanted to leave; he got angry. That's when he had some tie-wraps in his bedroom; he secured her with the tie-wraps.
He said that there was a roll of tape on the top of his refrigerator that was used *130 for packing. He took a knife off the kitchen sink, cut the tape, put a piece of tape on her mouth because she was yelling and screaming and he didn't want anyone to hear, so he taped her mouth, put her in the van, and went to drive away so that they could find a quiet place to talk.
I asked him where he retrieved the gun from and he said that the gun belonged to Kimberly; that when he was putting her in the van, pushing her across to the passenger's side, that she had a purse in between the two seats that was tied with a string, that it had fallen open and the gun had fallen on the floor and he took the gun and put it in his pants; then drove to the Centerville area which he was familiar with, because he had gone fishing in that area.
Would you like for me to continue?
Prosecutor: Yes. Please.
When he drove to that area he said that Kimberly didn't want to talk to him, and he kept wanting to talk to him (sic).
He did remove the tape from her mouth, he said, and he balled it up, didn't remember if he had thrown it on the floor of the van or if he had thrown it out of the window.
He said that somewhere in the Centerville area, after they had crossed the bayou, there was a pumping station near the area in which he was going.
The van had slowed down, and she opened the van, and she had gotten loose from her tie-wraps, and jumped out of the van.
He said that while the van was still moving, he jumped out of the same door she did, and the van continued rolling and hit a mailbox. He jumped in the van, stopped the van, and then he started looking for her. He said that there was all kinds of people, and people were yelling and screaming, and then he thought he heard Kimberly.
A lady was standing there and he was asking, where was Kim, where was Kim, and she wouldn't answer, and the gun went off.
He said that then he saw a male subject come to the door of that house, and he thought that he heard something in the house that he thought was Kim, and he proceeded into the house.
He said that the male subject reached over towards — over a table towards the sofa, and at that point he fell on the sofa. He didn't say that he had shot him, he just said that the man fell on the sofa.
He saw that the back door was open, and he thought it was Kim, so he proceeded out the back and was looking for Kim.
I asked him what he had done with the gun and he told me that he threw it in the wooded area behind that home.
Then he heard sirens, so he jumped into the Police Car — back in the van, and took off. And he had some work gloves on, some Black Dot work gloves, and he threw the Black Dot work gloves and the knife out somewhere around Calumet.
Ran from the Police and pulled into the Morgan City Police Department and that is where he was apprehended. [50]
Chief McGuire testified that what the defendant told her was consistent with other information received by the police, except in a few particulars. For instance, Chief McGuire had received information that the defendant had purchased the gun from someone at his *131 work and that it did not belong to Kimberly Zimmerman. [51]
In assessing whether the third, unrecorded, statement was obtained in violation of the defendant's right to remain silent, we note that this statement was obtained almost 18 hours after the conclusion of the defendant's interrogation of the previous day by police. During that time period, the defendant slept, ate and was free from further questioning, all as recorded on the time-lapse videotape. We find that any coercive effect from the earlier police interrogation had dissipated by the time Captain Broussard began conversing with the defendant.
No evidence indicates that defendant received a new set of Miranda warnings before Captain Broussard and Chief McGuire interviewed him in the cell, however, the defendant, a veteran of the criminal justice system, had received a full set of warnings from Lt. Guillory at booking on the previous evening, and the advice was presumably fresh in his mind a few hours later when he agreed that he would talk to Captain Broussard. We find that the defendant knew and validly waived his constitutional rights based on the fact that he had been informed of them on several occasions the previous day and indicated unquestionably that he understood them. We find that the defendant was clearly invoking his right under Miranda to control the time at which questioning would occur and the topics which would be discussed by his agreement to give a statement to Chief McGuire. After reviewing the totality of the circumstances, we find that there was no abuse in the trial court's determination that the third, unrecorded, statement was admissible in evidence.
Fourth Statement
After the conversation in the holding cell, Chief McGuire asked the defendant if he would like to make a recorded statement. The defendant agreed. After taking an approximate 40 minute break so that the interrogation room could be set up, and during which time the defendant was allowed to take a shower and spend some time outside, [52] the defendant gave a videotaped confession at 10:00 a.m. in the presence of Chief McGuire, Captain Broussard and Lt. Guillory.
At the suppression hearing, Chief McGuire testified that Miranda warnings were given prior to obtaining the recorded statement. [53] She also testified that the defendant signed a consent to search during the taking of the statement. [54] Captain Broussard testified that Lt. Guillory advised the defendant of his rights. [55] Lt. Guillory testified that he advised the defendant of his constitutional rights and that another rights form was filled out, along with a consent to search. [56]
The videotape shows that the defendant initially expressed that he did not want to talk anymore, that he wanted to rest his mind. Chief McGuire stressed the need to get the defendant's statement on the record so that the police could then check the information the defendant gave them. Lt. Guillory reminded the defendant about the rights they had discussed the night before and specifically informed the defendant of his right to remain silent. As Captain Broussard put a cassette tape in the tape recorder, the defendant informed them *132 that he did not feel comfortable. When the officers tried to ascertain what aspect of the interview made the defendant uncomfortable, specifically questioning the defendant's feelings about the audiotape, the defendant responded that he just did not know what to do.
The police reiterated the need to get the defendant's statement on the record and urged the defendant to read over the waiver of rights form. The defendant stated he did not want to spend the rest of his life in prison and indicated that he knew that would happen. The defendant asked the officers to confirm that the woman he shot was okay and asked if the man he shot had been her husband. When told that the man was the woman's husband, the defendant began to cry and stated he did not even know the man he shot. He was again urged to read over his rights form so that the police could search for the evidence that would support his story.
At this point, the videotape reflects that the defendant agreed to give a written consent to search so that the officers could search his house. When asked specifically if he was refusing to sign the waiver of rights form, the defendant stated that he did not want to talk. The police told the defendant that in order to obtain a written consent, he would also have to "do his rights," too. Thereafter, the defendant appeared to want the officers to search his house to find the evidence that would corroborate the information he was telling them so that the officers could see he was telling the truth.
When the rights form was presented to him, the defendant was asked by Captain Broussard whether he wanted a lawyer with him "right this second." The defendant responded "I know I need to see one." He then went on to say he just did not know what was going to happen to his life. Captain Broussard told the defendant that the judge would appoint a lawyer for him. The defendant did not raise the issue of counsel again but answered the officers' questions implicating himself in the aggravated kidnapping of Zimmerman and the shooting of Evelyn and Troy Salone.
When the officers concluded the interrogation, they again attempted to have the defendant sign the waiver of rights form. Captain Broussard told the defendant that the rights on the form were the same ones that Lt. Guillory had read to him. The defendant indicated "okay" and signed the waiver of rights. [57] The entire interview lasted from 10:00 a.m. until approximately 10:35 a.m.
This videotaped statement was obtained less than an hour after the defendant made an unrecorded statement to Chief McGuire and Captain Broussard. In the interim, the defendant was allowed to refresh himself with a shower and a brief respite outside. The defendant was reminded of the Miranda provisions which had been thoroughly discussed the previous evening with Lt. Guillory and Lt. Guillory specifically reminded him of his right to remain silent prior to this interview. When the defendant expressed his discomfort with the situation, the officers tried to ascertain the source of the defendant's discomfort. The defendant informed the officers that his discomfort stemmed from the fact that he did not know what to do, rather than his explicit indication that he was invoking his right to remain silent. The defendant was presented with another waiver of rights form, the same as the one he had gone over with Lt. Guillory the previous evening, and was urged to review it.
*133 The defendant offered to sign a consent to search because he appeared eager for the police to collect the evidence which would support the information he had already told them. The police told the defendant that a waiver of rights had to be done at the same time as his voluntary consent to search. The defendant now complains that this trickery coerced him into making his recorded statement. However, "[p]loys to mislead a suspect ... that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns." Illinois v. Perkins, 496 U.S. 292, 297 , 110 S.Ct. 2394, 2397 , 110 L.Ed.2d 243 (1990). We do not find that the officers' statement to the defendant rises to the level which would compel him to speak. Here, the defendant was clearly informed and indicated his understanding that he could remain silent, could cut off questioning at any time, could request an attorney during questioning, or could waive his right to remain silent and speak with the officers. The defendant chose to continue to speak with the officers.
Nor do we find merit in a supplemental argument submitted by the defendant for our review. The defendant argues that the unrecorded first statement that day, at which no new recitation of Miranda was performed, followed by the recorded statement at which the waiver form was signed after the conclusion of the recorded statement violated the "question first" protocol denounced in Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). We find the circumstances presented here to be distinguishable from those at issue in Seibert .
In Seibert , officers questioned a female murder suspect in a two-stage interview. In the first interview, the officer purposely failed to give the defendant, Seibert, Miranda warnings. The officer questioned Seibert for 30 to 40 minutes and obtained a confession. After a 20 minute break, the officer returned and advised Seibert of her rights under Miranda . A signed waiver of rights was obtained, and the officer resumed questioning, confronting Seibert with her pre-warning confession. By use of this interrogation protocol, the officer obtained a post-warning confession which basically repeated Seibert's earlier statement. Seibert moved to suppress both her pre-warning and post-warning statements. The trial court in that case suppressed the pre-warning statement only, admitting Seibert's post-warning statement at trial.
The case ultimately was reviewed by the Supreme Court, which held that both the pre-warning and post-warning statements were inadmissible at trial. [58] The Court found that a midstream recitation of Miranda warnings could not comply with the object of Miranda, i.e. that the "warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture." [59] As the Court stated:
Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. [60]
In the present case, the defendant had been advised of his Miranda rights at least three times before the December 12, 2001 interrogation: first, upon arrest by Sgt. Driskell, just after midnight on December 11th; second, later that day by Parole Officer Rupert; and third, later still *134 on the evening of December 11th with Lt. Guillory, at which point the defendant signed a waiver of rights form. In addition, Lt. Guillory advised him of his right to remain silent immediately prior to the defendant's recorded confession on December 12th. Consequently, the defense's claim that the defendant may not have understood that he had the right to remain silent until after making his December 12th recorded confession is disingenuous. The defendant had been Mirandized repeatedly and had previously signed a waiver of rights form. Moreover, considering the defendant's criminal record as stipulated to at the penalty phase, the defendant was no stranger to the criminal justice system and his constitutional rights. We find no merit in the defendant's supplemental argument regarding these statements.
Right to Assistance of Counsel
The defendant points to two instances during police interrogation when the issue of legal representation arose. The first instance occurred during booking with Lt. Guillory. After the defendant signed the waiver of rights form, Lt. Guillory read aloud the waiver portion which included the statement "I do not want a lawyer at this time." [61] The videotape of the booking reveals that the defendant immediately responded "yeah, I'm gonna need a lawyer, though." Lt. Guillory explained the procedure about obtaining appointed counsel as opposed to hiring one. Nothing further on the issue of counsel arose during the booking procedure.
The second instance occurred during the fourth, recorded statement, when Captain Broussard sought the defendant's signature on the second waiver of rights form. Captain Broussard asked the defendant to affirm that he did not want a lawyer at that moment. The defendant responded that he knew he needed to see one but no temporal aspect attached to this statement.
Miranda requires that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to the suspect before questioning begins. Id., 384 U.S. at 469-473 , 86 S.Ct. at 1625-1627 . When an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-485 , 101 S.Ct. 1880, 1885 , 68 L.Ed.2d 378 (1981).
One of the first questions to be determined is whether particular police conduct constitutes "interrogation." In Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), the Supreme Court concluded that the goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to "its functional equivalent." Innis, 446 U.S. at 301 , 100 S.Ct. at 1689 . "Functional equivalent" of questioning was explained as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Arizona v. Mauro, 481 U.S. 520, 526-527 , 107 S.Ct. 1931, 1935 , 95 L.Ed.2d 458 (1987), citing Innis, 446 U.S. at 301 , 100 S.Ct. at 1689 .
In addition, a reviewing court must determine whether the accused has *135 "unambiguously request[ed]" counsel "sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney" in order to cease custodial interrogation. Davis v. United States, 512 U.S. 452, 459 , 114 S.Ct. 2350, 2355 , 129 L.Ed.2d 362 (1994); State v. Payne, XXXX-XXXX p. 12 (La.12/4/02), 833 So.2d 927, 937 . In Payne , this court held the
[i]nvocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the cessation of questioning is not required. The suspect must articulate his desire to have counsel present with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
Payne, XXXX-XXXX p. 10, 833 So.2d at 935 (citations omitted; emphasis in original).
With these requirements in mind, we find that the defendant was not subject to "interrogation" at the time of his booking with Lt. Guillory. Lt. Guillory's words and actions at that time were not the "functional equivalent" of questioning, but were rather words or actions on the part of the police normally attendant to arrest and custody. In fact, Lt. Guillory informed the defendant that he was not there to take a formal statement. Such a procedural interview should not be equated with custodial questioning about the facts of the offense. Moreover, we find that the statement which the defendant made during booking regarding counsel did not articulate a desire to have counsel present such that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Rather, we find that the statement was more akin to a realization by the defendant that at some point in the future he would require the services of counsel.
Likewise, the defendant's comment during interrogation to Captain Broussard that "I know I need to see one [a lawyer]" did not amount to an unambiguous request for counsel that would indicate to a reasonable police officer that the defendant was asking for counsel at that time. Similar to his statement at booking, the defendant's announcement appears to affirm the defendant's understanding that he would ultimately require the services of a lawyer. There was nothing in the defendant's announcement that he was requesting the services of counsel at that item nor that he wanted to communicate with the police solely through counsel. We find no abuse of the trial court's discretion in failing to suppress the defendant's statements on this basis.
Fifth Statement
The defendant complains that the police "secretly" recorded a telephone conversation between the defendant and his brother, Mark Leger, which constituted a "functional equivalent" of interrogation and violated his invocation of the right to counsel. The record shows that following the recorded statement of December 12, 2001 ( "Fourth Statement" discussed herein), attorney Gary LeGros arrived at the police station to meet with the defendant. LeGros specifically advised the police that the defendant was invoking his right to counsel and that further questioning of the defendant by the police was prohibited.
Thereafter, Mark Leger returned a phone call which Lt. Guillory had placed at *136 the request of the defendant. The recording of the conversation shows that when the call came in, Lt. Guillory asked Mark whether he wanted to speak to the defendant by telephone or whether he would prefer to come down to the police station. Mark opted to speak to his brother on the telephone. Lt. Guillory advised Mark that the telephone call would have to be on speaker phone. Mark affirmed that method of communication would be "alright" and "however he wanted to do it, that's fine." [62]
Lt. Guillory testified at the suppression hearing that he also informed Mark that the telephone conversation would be recorded:
Normally, under circumstances, we don't let anybody talk to inmates, but I figured that he [the defendant] needed to talk to a family member. So, I went to my office, opened my office up, got him, brought him into my office, explained to his brother that it would be on speaker phone, explained to him that the phones are recorded. All of the phones are recorded at P.D. Let him talk to his brother. I stepped out of my office and left a crack in the door about like that (indicating) and let him talk to his brother. [63]
Captain Broussard affirmed that all of the normal business telephone lines in the Franklin Police Department are recorded on a tape machine. [64]
At trial, Lt. Guillory testified that he told Mark both that the line was recorded and that the call would be on speaker phone so that the officer could hear it. [65] On cross-examination, he conceded he did not tell the defendant that the line was recorded; however, he stated that the telephone itself is marked as a recorded line. [66] Although Mark testified he heard a tone on the line that he assumed was the telephone being taken off of the speaker phone, [67] Lt. Guillory disputed that fact, testifying that the receiver of the telephone was never picked up. [68] When asked whether he thought the defendant had an expectation of privacy in the conversation, Lt. Guillory questioned how the defendant could have thought he was having a private conversation with the conversation being on speaker phone, with Lt. Guillory looking at him through the door and "hearing the whole conversation." [69]
In this telephone conversation, the defendant admitted he had committed the crimes with which he was charged. He expressed sorrow and despair. He also instructed his brother to sell his truck and whatever other possessions he owned in order to provide the defendant with money.
The question presented here by counsel, whether police have right to record conversations between a suspect in custody and a family member, was answered in Arizona v. Mauro, 481 U.S. 520 , 107 S.Ct. 1931 , 95 L.Ed.2d 458 (1987). In Mauro , the wife of a murder suspect expressed a desire to speak to him while he was in custody. The police eventually acquiesced but informed both the suspect and his wife that they could only speak together if an officer were present in the room to observe and hear what was going on. The *137 officer placed a tape recorder in plain sight on the desk in the room and taped the conversation, which was later played to the jury at trial. The Mauro defendant sought suppression of the recording on the ground that it was a product of police interrogation in violation of his expressed right to deal with the police only through counsel.
The Mauro Court held that under both Miranda and Innis , the suspect was not subjected to interrogation or its "functional equivalent." [70] The Court found that the tape recording showed that the police asked no questions about the crime or the suspect's conduct nor was it suggested or supported by evidence that the police's decision to allow the suspect's wife to see him "was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation." [71] The Court did not find improper the presence of the officer during the conversation between the suspect and his wife, nor the fact that the police recorded the conversation. [72] The Court determined that the weakness of the suspect's Miranda claim was underscored by examining the situation from the defendant's perspective, as required by Innis . In other words, the Court "doubt[ed] that a suspect, told by officers that his wife will be allowed to speak to him, would feel that he was being coerced to incriminate himself in any way." [73]
We find that the defendant's claim regarding the admissibility of the tape recording of his conversation with his brother is controlled by Mauro and the law cited therein. We find that the defendant was not subject to interrogation or its functional equivalent by being allowed to speak with his brother on the telephone at the police station. The actions of the police in permitting the telephone conversation to occur were not coercive. As in Mauro , the defendant's relative was informed that the conversation would be overheard by others. Just as the Mauro defendant could see the tape recorder, the defendant had only to glance down to see the notation that the telephone was a recorded line. In addition, the defendant had to be aware that Lt. Guillory was stationed just outside the cracked door and was listening to the entire conversation. Thus, the statement obtained by the police by recording the telephone conversation was not obtained in violation of the defendant's Miranda rights. We find no abuse of the trial court's discretion in failing to suppress this statement at trial.
Voluntariness Affected By Physical And Mental Condition
The defendant argues that the police coercively questioned him repeatedly over a day and a half and, in effect, wore down his resistance. On the contrary, we find nothing to suggest that the duration of the various interviews police had with the defendant, without more, rendered the defendant's statements involuntary. The record supports the finding that all of the interrogation sessions were of short duration and did not last the entirety of the "day and a half" as maintained by appellate defense counsel. All of the officers connected with the questioning of the defendant affirmed that the defendant was never threatened, intimidated, or made *138 promises or inducements in order to obtain a statement.
The defendant's encounter with Sgt. Driskell in the early morning hours of December 11, 2001, when the defendant was first arrested and read his rights, lasted mere minutes. Similarly, the defendant's encounter with Sgt. Smith and Sgt. Riviere lasted only a few minutes. The defendant invoked his right to silence and questioning never occurred.
The other instances of questioning were not coercively lengthy. Agent Rupert testified that the entire interview with the defendant later in the morning on December 11, 2001, lasted approximately two hours and the videotaped portion of the interview, including the additional questioning by Chief McGuire and Detective Sonnier, lasted only one hour. The defendant's booking by Lt. Guillory, on the evening of December 11, 2001, lasted less than ½ hour.
On December 12, 2001, the defendant's conversation with Captain Broussard and his unrecorded conversation with Chief McGuire lasted from approximately 7:30 a.m. until 9:19 a.m. The recorded statement obtained from the defendant later that morning lasted from 10:00 a.m. until 10:35 a.m. Based on these numbers, the entire police interrogation of the defendant appears to have consumed less than six hours out of a period of 36 hours. Clearly, the length of time that the defendant was questioned while in custody was not so coercive as to lead to an involuntary statement or confession.
The defendant also complains that the police assaulted him upon his arrest, rendering his subsequent statements to police involuntary. La. R.S. 15:452 provides that no arrestee "shall be subjected to any treatment designed by effect on body or mind to compel a confession of a crime." The record is unclear as to how the slight scratches on the defendant's face and ear occurred. During the videotaped statement of the defendant taken on December 11, 2001, the defendant told Agent Rupert and Lt. Guillory that the police inflicted the scratches during the arrest procedure. To Chief McGuire and Captain Broussard, however, there is an indication that the defendant also stated during his unrecorded conversation with them that the defendant scratched his ear while running through the woods behind the Salone trailer looking for Zimmerman and discarding the gun. We find that however the cut occurred, the mug shot photograph shows only a slight injury and not the result of the police beating a confession out of the defendant. The trial court did not abuse its discretion in failing to find the defendant's statements involuntary on this basis.
The defendant also argues that he was suffering from a head injury, was suicidal and had been suffering from depression and sleep deprivation in the weeks preceding his arrest due to his break-up with Zimmerman, which rendered his confessions involuntary. In support of this argument, appellate defense counsel points to the record of the defendant's custodial statements that claimed that "I just wanna die," "my life is over," "I have nothing to live for," and "I just don't wanna live no more." In addition, counsel relies on the fact of the defendant's self-inflicted head injury after arrest. Finally, the record also shows the defendant complained during some interviews that his head hurt, that he was dizzy, and that he wanted to lie down.
The record also reflects that the police immediately sought medical attention for the defendant after he rammed his head into a wall. The EMT from Acadian Ambulance evaluated the defendant's vital *139 signs and assessed a slight redness to the defendant's forehead but no swelling. When the EMT offered to transport the defendant for medical treatment, the defendant refused.
We find that none of the instances of mental fragility, depression, head injuries or sleep deprivation about which counsel now complains rise to the level of impairing the defendant's ability to voluntarily waive his rights and give a statement to the police. We note that the defendant rested in his cell or slept for most of the time period at issue. That the defendant was depressed during this time period is not in doubt. The defendant had just shot two total strangers in his attempt to capture and abduct his former girlfriend. However, the defendant's sanity was never at issue in this case and there is nothing in the record to suggest that the defendant's statements were not voluntarily given. The trial court did not abuse its discretion in failing to find the defendant's statements involuntary on this basis.
Finally, the defendant argues that the police manipulated his need for medical treatment to secure his statement. During the second part of the December 11, 2001 interrogation, Chief McGuire indicated that she would tell the District Attorney's office about how the defendant felt, i.e. that he thought he needed some medication or to talk to a psychiatrist or something. The following day, just prior to obtaining the recorded statement, Chief McGuire observed that they could get the defendant's statement "on the record" while the defendant waited to see the doctor.
La. R.S. 15:451 prohibits the use of inducements or promises to secure a confession. [74] Counsel's assertions in this argument are utterly contradicted by the record, which is replete with the police's solicitous care of the defendant while in custody. The police immediately contacted medical personnel to evaluate the defendant after his self-injury and he was assured he could see medical or psychiatric professionals if he felt he needed them. The defendant was repeatedly offered food, water, a shower, and the use of the telephone. The defendant's cut ear was attended to by the jail nurse and he was given sleep medication at his request. The police allowed the defendant to take a break outside and a shower before making his recorded confession. The defendant was allowed to sleep and recover in his cell for long periods of time. Viewing the totality of the circumstances surrounding the defendant's custodial statements, nothing presented demonstrates that the statements were anything other than the defendant's voluntary expressions. We find no abuse of the trial court's discretion in failing to suppress the defendant's statements on this basis.
Harmless Error
The defendant argues that the trial court's erroneous admission of his custodial statements and the prosecutor's use of these statements contributed to the jury's guilt and penalty phase verdicts. Specifically, appellate defense counsel argues that the improperly admitted statements were used to establish the defendant's guilt of first degree murder and that the prosecutor used the statements in the penalty phase to characterize the defendant as a remorseless killer who refused to accept responsibility.
*140 As previously discussed, we have found that only the December 11, 2001 statement obtained through interrogation by Lt. Guillory, Agent Rupert, Chief McGuire and Detective Sonnier (discussed herein as the First Statement ) was obtained in violation of the defendant's constitutional rights. The admission of this statement into evidence was error. However, "[t]he admission of an involuntary confession is a `trial error,' similar in both degree and kind to the erroneous admission of other types of evidence" which must be reviewed to determine whether the error was harmless. Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991); State v. Harris, 2001-2730 p. 26 (La.1/19/05), 892 So.2d 1238, 1260 , cert. denied, ___ U.S. ___, 126 S.Ct. 102 , 163 L.Ed.2d 116 (2005); Koon , XXXX-XXXX p. 9, 704 So.2d at 763 . "An error is harmless if it is unimportant in relation to the whole and the verdict rendered was surely unattributable to the error." Koon , XXXX-XXXX p. 9, 704 So.2d at 763 .
Reviewing courts must take great care in reviewing whether the admission of a coerced confession constitutes harmless error. In Fulminante , the Supreme Court cautioned:
A confession is like no other evidence. Indeed, "the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him ... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so."
Id., 499 U.S. at 296 , 111 S.Ct. at 1257 , citing Bruton v. United States, 391 U.S. 123, 139-140 , 88 S.Ct. 1620, 1630 , 20 L.Ed.2d 476 (1968) (White, J. dissenting). After our review of the evidence, we find that this case proves the rule of Fulminante . Not only do we find that introduction into evidence of the defendant's December 11, 2001 interrogation statements was harmless beyond a reasonable doubt, we would go further to hold that the admission of any of the defendant's statements was surely unattributable to either the guilty verdict or the penalty determination. For each stage of this sad sequence of events, the state presented both eyewitnesses and tangible evidence to prove its case beyond a reasonable doubt.
In the guilt phase, the state presented overwhelming evidence that the defendant committed the first degree murder of Troy Salone during the perpetration of an aggravated kidnapping and an aggravated burglary, and that he had the specific intent to kill or inflict great bodily harm upon more than one person. La. R.S. 14:30(A)(1), (3). Zimmerman positively identified the defendant as her ex-boyfriend, and the person who bound her hands with tie-wraps and kidnapped her at gunpoint, driving her to another location in her own van against her will. Likewise, Evelyn Salone positively identified the defendant as the person who shot her in the abdomen at close range, just before he shot her husband inside their trailer home. Zeb LeBlanc made a tentative identification of the defendant as the armed gunman who invaded their home, but his clothing description of the gunman matched precisely the articles of clothing seized from the defendant at the time of his arrest. After the shooting, the defendant led police on a high-speed chase, culminating at the Morgan City Police Department. Officers never lost sight of the blue van in which the defendant attempted his getaway, even though the defendant periodically *141 shut off the vehicle's headlights and drove through fields. Evidence seized from the defendant's home and vehicle, specifically a pregnancy test, tie-wraps and tape, corroborated Zimmerman's account. Additionally, a co-worker of the defendant testified that he sold the defendant a gun just days before the murder.
We find after considering all of the evidence presented by the state at the guilt phase that the guilty verdict rendered by the jury was unattributable to any error with respect to admitting one or more of the defendant's statements. Sullivan v. Louisiana, 508 U.S. 275, 279 , 113 S.Ct. 2078, 2081 , 124 L.Ed.2d 182 (1993) ("The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.") (Emphasis in original).
In the penalty phase of the case, the prosecutor argued to the jury that the statements showed that the defendant refused to take responsibility for his own actions and was remorseless. In State v. Lee, 524 So.2d 1176 (La.1987), where we found evidence of guilt overwhelming but we held that defendant's erroneously admitted statement constituted reversible error in the sentencing phase, we found
[t]here is surely a reasonable probability that this evidence might have contributed to the jury's decision [to impose the death penalty]. Listening to the confession, particularly those portions in which the defendant describes his conduct with apparent indifference, certainly could have led one or more members of the jury to conclude that he felt no remorse for his deeds. A juror listening to the confession also could reasonably be expected to experience strong emotions, ranging from mortification to outrage. Such impressions or emotions could in turn have contributed to the decision of one or more jurors to impose the death penalty.
Lee, 524 So.2d at 1191 . This case is distinguishable from Lee .
In many respects, the defendant's statements served as a basis for the jury to mitigate the sentence of death. His videotaped statements showed him crying and upset, indicating a sense of hopelessness and an honest sense of confusion as to why he had committed the actions that he did. His videotaped and audiotaped statements also show regret and remorse. Repeatedly, the defendant expressed his desire to end his life. Even though the jurors rejected the defendant's expressions of remorse as a circumstance to mitigate in his favor and as an argument against the imposition of the death penalty, it cannot be maintained that the statements contributed to the jury's death verdict by depicting him as a conscienceless and remorseless killer. Compare Lee, 524 So.2d at 1191-1193 . We find that the death sentence actually rendered in this trial was surely unattributable to any error in admitting any of the defendant's statements and the jury's consideration of them in the penalty phase.
We hold there was no reversible error in connection with any of the defense arguments raised regarding the admission in evidence of any of the defendant's inculpatory custodial statements.
Conflict with Counsel, Self-Representation Assignments of Error 7-9
In these assignments of error, the defendant argues that he repeatedly informed the court during pre-trial proceedings that he was not receiving effective assistance from appointed counsel, Craig Colwart, Chief of the Indigent Defender's Office, and that a conflict of interest existed. The defendant asserts the trial judge *142 failed to protect his right to competent, conflict-free counsel or his alternative right of self-representation.
La. Const. art. 1, § 13 provides in pertinent part that "at each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment." The Sixth Amendment to the United States Constitution likewise carries such a guarantee. In State v. Harper, 381 So.2d 468 (La.1980), this court explained:
As a general proposition a person accused in a criminal trial has the right to counsel of his choice. State v. Leggett, 363 So.2d 434 (La.1978); State v. Mackie, 352 So.2d 1297 (1977); State v. Anthony, 347 So.2d 483 (La.1977). If a defendant is indigent he has the right to court appointed counsel. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, [ 407 U.S. 25 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972)]; State v. Adams, 369 So.2d 1327 (La.1979); City of Baton Rouge v. Dees, 363 So.2d 530 (1978). An indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Rideau, 278 So.2d 100 (La.1973). An indigent's right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. State v. Jones, 376 So.2d 125 (La.1979); State v. Leggett, supra ; State v. Mackie, supra . Id., 381 So.2d at 470-471 . The question of withdrawal of counsel largely rests with the discretion of the trial judge, and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Bridgewater, XXXX-XXXX p. 21 (La.1/15/02), 823 So.2d 877, 896 , cert. denied, 537 U.S. 1227 , 123 S.Ct. 1266 , 154 L.Ed.2d 1089 (2003).
The defendant's arguments with regard to this issue of counsel has three parts, those being (1) claim of ineffective assistance; (2) conflict of interest; and (3) self-representation.
Ineffective Assistance Of Counsel and Conflict Of Interest
"Initially we note that ineffective assistance of counsel claims are usually addressed in post-conviction proceedings, rather than on direct appeal." State v. Deruise, XXXX-XXXX p. 35 (La.4/3/01), 802 So.2d 1224, 1247-1248 , cert. denied, 534 U.S. 926 , 122 S.Ct. 283 , 151 L.Ed.2d 208 (2001). The post-conviction proceeding allows the trial court to conduct a full evidentiary hearing, if one is warranted. State v. Howard, XXXX-XXXX p. 15 (La.4/23/99), 751 So.2d 783, 802 , cert. denied, 528 U.S. 974 , 120 S.Ct. 420 , 145 L.Ed.2d 328 (1999). Where the record, however, contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy. State v. Smith , XXXX-XXXX (La.6/29/01), 793 So.2d 1199 (Appendix, p. 10), cert. denied, 535 U.S. 937 , 122 S.Ct. 1317 , 152 L.Ed.2d 226 (2002); State v. Ratcliff, 416 So.2d 528 (La.1982).
Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes: (1) that counsel's performance fell below an objective standard *143 of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.
We find that the record on appeal is sufficient to decide the defendant's claim of ineffective assistance of counsel. The defendant points to various instances in which he informed the court pretrial of deficiencies in appointed counsel's performance, which he claims the court failed to address. The record on appeal contains several motions filed pro se by the defendant. Moreover, since aspects of the ineffective assistance claim overlap with the claim of conflict of interest, we will address these issues together.
First, the defendant points to his October 8, 2002 pleading entitled "Pro Se Motion to Dismiss Present Counsel and Appoint Private Counsel" and an accompanying memorandum of law. [75] The factual allegation of ineffectiveness raised therein concerns appointed counsel's performance at the April 12, 2002 motion hearing. According to the defendant, the prosecutor called to the stand Gary LeGros, an attorney with the public defender's office and the attorney who first visited the defendant in the Franklin Parish jail on December 12, 2001. The defendant believed that attorney LeGros testified that the defendant admitted his crimes to him and was sorrowful, prompting the defendant to ask his counsel, Colwart, to object to this violation of his attorney-client privilege. Instead, the defendant claims that Colwart instructed him to be quiet. In connection with this motion, the defendant also filed a pro se motion seeking the transcript of the April 12, 2002 hearing. [76] On February 3, 2003, the trial court denied the defendant's motion to dismiss counsel. [77]
A review of the transcript from the April 12, 2002 hearing shows that the defendant's memory of events was faulty. In fact, it was defense counsel Colwart who called LeGros to the stand. After eliciting the information that LeGros visited the defendant at the Franklin Parish jail, the following colloquy ensured:
Colwart: . . . And did you — when you advised Mr. Leger of his rights and discussed with him his case, did he indicate to you that he — did ya'll talk about whether he wanted to make a statement or not to the police?
LeGros: We discussed a lot of things. Yeah. And one of the things was that the sta-you know, he wanted to tell his story, and I told him that that's not a good idea.
Colwart: Okay. So you advised him to assert his fifth amendment rights?
LeGros: Absolutely.
Colwart: And he indicated he would?
LeGros: Yes.
Colwart: And did you inform that — did you make known that fact to the Franklin Police Department?
LeGros: I made known that fact to every police officer that I passed on the way out. I told them that I had seen him, he was off limits. [78]
The cross-examination conducted by the prosecutor does not even touch on what LeGros discussed with the defendant. [79] *144 The record, thus, does not support the defendant's belief that the prosecutor, or even defense counsel, elicited or provided a statement to the effect that the defendant admitted to the crimes with which he was charged. The defendant fails to show either that his counsel's performance fell below an objective standard of reasonableness or that counsel's alleged inadequate performance prejudiced him to the extent that his trial was rendered unfair and the verdict suspect. We find no abuse of the trial court's discretion in denying the motion to dismiss counsel on this ground, nor in the trial court's subsequent denial of the defendant's desire to have an independent court reporter re-type the transcript from the original tape recordings of the hearing on the basis of the defendant's belief that the transcript did not accurately reflect the testimony then brought forth. [80]
An instance of the defendant's alleged conflict with counsel was pointed out during a hearing conducted April 1, 2003, when the defendant personally informed the court of the fact that he had filed a complaint against his appointed counsel, Colwart, as well as attorney LeGros and the prosecutors, with the Louisiana Attorney Disciplinary Board. [81] Although not discussed, it is presumed that the complaint was based on the defendant's belief that his attorney/client privilege had been violated, as previously discussed. The defendant presented the trial court with a letter he received from Charles Plattsmier, Chief Disciplinary Counsel. This letter was made a part of this record. [82] After reviewing the letter, the trial court advised the defendant, as follows:
... The document that you handed to me, one of them is dated September 23rd, 2002, and it is a reply from the Chief Disciplinary Counsel, Mr. Charles B. Plattsmier, that the disciplinary counsel does not have the authority to adjudicate the Writ of Habeas corpus, nor petition for Post-Conviction Relief, and the issue of ineffective assistance of counsel is best resolved in a court of law. And on this basis — My understanding of the gist of this letter is that they have rejected your complaint. There's a following letter that you submitted to me, dated November 4th, 2002, addressed to the Louisiana Attorney Disciplinary Board, under the signature of Charles B. Plattsmier, Chief Disciplinary Counsel, wherein you may have requested information concerning Mr. Colwart and Mr. LeGros, and that information was provided to you; [83] additionally, indicating whether or not they were eligible to practice law under the licensure of the Louisiana Supreme Court. And except for the information provided, there is an indication that they are currently attorneys in good standing with the Louisiana State Bar Association and able and permitted to practice law throughout the State of Louisiana and in the Courts of the State of Louisiana. . . . [84]
*145 After considering the defendant's complaint filed against his attorney and his claims of conflict based on that filing, the trial court ruled: "I find that you have not presented anything to me, currently, at this proceeding which would indicate a need to dismiss your attorneys and appoint any other attorneys to represent you." [85]
We find no abuse in the trial court's discretion in failing to remove appointed counsel Colwart based on this claim of conflict of interest. In effect, there was no conflict of interest because the state bar disciplinary counsel had refused to accept the defendant's complaint, since it dealt with a claim of ineffective assistance of counsel. We have previously determined that the basis of the defendant's claim was his faulty memory of what occurred at the April 12, 2002 motion hearing. Thus, the trial court properly found the defendant failed to demonstrate a need requiring Colwart's dismissal.
Also in connection with the April 1, 2003 hearing, attorney Colwart announced that the defense was not ready for trial, then scheduled for May 14, 2003, because the defendant was seeking new counsel. [86] The trial judge responded:
What new counsel? Well, the defendant has Counsel and he has not given the Court any indication why present Counsel should be removed. So as far as the Court is concerned, the defendant has adequate and effective Counsel and the case is ready for trial. [87]
Although this instance is raised as an example of Colwart's ineffective assistance of counsel, the defendant fails to show either that his counsel's performance fell below an objective standard of reasonableness or that counsel's alleged inadequate performance prejudiced him to the extent that his trial was rendered unfair and the verdict suspect. This portion of the trial does not support a claim for ineffective assistance of counsel.
Next, the defendant claims counsel was ineffective in failing to object to the admission of the recorded telephone conversation between the defendant and his brother, Mark Leger. This claimed error was the subject of yet another pro se motion, entitled "Motion and Order to Dismiss Public Defender Craig Colwart and Appoint New Counsel," filed in the court record on June 9, 2003, with a cover letter of June 4, 2003. [88] Prior to the filing of this motion, the trial court had denied the defense motion to suppress all of the defendant's various statements on April 17, 2003. [89] The trial court denied the defendant's motion to dismiss Colwart on this ground without a hearing on July 11, 2003. [90]
The focus of this claim by the defendant is his contention that Lt. Guillory lied during the suppression hearing when he testified that he told the defendant and his brother that their telephone conversation would be recorded. He argued in support of this claim that the tape recording of the conversation shows that no such advice was given. The defendant claimed Colwart was ineffective for failing to argue this ground as part of his motion to suppress.
We have previously reviewed both Lt. Guillory's suppression hearing and trial testimonies, and the recording of the telephone *146 conversation. Although Lt. Guillory may have been mistaken in believing he had told the defendant and his brother that the line was recorded, the audio recording affirmatively shows that Mark Leger was informed that his conversation with the defendant would be on speaker phone, unmistakably implying that the conversation would be overheard by others. Moreover, we found the police's conduct in tape recording the telephone conversation to be consistent with the Supreme Court's holding in Mauro, supra . Thus, there was no legal basis for defense counsel to contest the admissibility of the recorded telephone conversation. The fact that the trial court denied the defense's motion to suppress does not establish ineffective assistance on counsel's part. The defendant fails to show either that his counsel's performance fell below an objective standard of reasonableness or that counsel's alleged inadequate performance prejudiced him to the extent that his trial was rendered unfair and the verdict suspect. There was no abuse of the trial court's discretion in denying the defendant's motion to dismiss Colwart on this basis.
The July 11, 2003 hearing reveals a factual matter important to our discussion regarding assistance of counsel. One of the purposes for the hearing was to discuss the defendant's contact with one of the victims, Kimberly Zimmerman. In a hand-written letter dated June 12, 2003, the defendant wrote a letter to Zimmerman, urging her not to testify against him. The defendant included this statement in his letter "I hope you understand that I have two very good attorneys now that's going to win my freedom easily." [91] (Emphasis added). This letter was penned only eight days after the motion seeking to dismiss Colwart discussed above and a month before the hearing on the matter. Thus, the trial judge was made aware of the defendant's inconsistent assertions regarding the effectiveness of his counsel.
Next, the defendant complains that Colwart did not review an audiotape with the defendant that Colwart claimed in court that he had. This claim resulted in a letter written by the defendant to Colwart and included in the record. In the letter, the defendant asserts that Colwart never reviewed with him the December 11, 2001 interrogation involving Agent Rupert, Lt. Guillory and Captain Broussard. [92]
First, we note there is no audio or video recording of an interrogation occurring on December 11, 2001 which involved all three of the officers listed in the defendant's letter. However, on December 11, 2001, there was an interrogation in which Lt. Guillory and Agent Rupert were involved; and on December 12, 2001, there was an interrogation in which Lt. Guillory, Captain Broussard and Chief McGuire were involved.
Our review of the transcript of the status conference held September 30, 2003, when Colwart allegedly made the statement which the defendant contests, reveals that the defendant is again mistaken in his recollection of the record. Attorney Colwart acknowledged to the court that the state had turned over all the audio and videotapes within the state's possession and that he had "been over about half of them with the defendant." [93] Colwart claimed that, since the defendant's transport to Angola from the parish jail, he had been unable to review the rest of the tapes with the defendant. However, he also stated: "But I do recall, specifically, the *147 Gus Guillory tape that we have, I've been over with the defendant." [94] There is no indication whether Colwart meant the December 11, 2001 interrogation in which Lt. Guillory participated with Agent Rupert or the December 11, 2001 booking statement, or even the December 12, 2001 interrogation in which Lt. Guillory participated with Chief McGuire and Captain Broussard.
Moreover, we fail to discern, because it is not argued precisely, what is being claimed as ineffective assistance of counsel. Insofar as appellate defense counsel finds ineffective that Colwart had not yet reviewed the tapes with the defendant when there were more than three months prior to trial, we find that the defendant fails to show either that his counsel's performance fell below an objective standard of reasonableness or that counsel's alleged inadequate performance prejudiced him to the extent that his trial was rendered unfair and the verdict suspect. Insofar as appellate defense counsel alleges that Colwart was less than honest on the record with regard to his contact with the defendant, we find that the record does not factually support such an allegation.
Finally, on December 10, 2003, defendant addressed the court with his complaints that counsel waited until 15 days before trial before preparing a defense; had failed to file the motions necessary to protect his rights; had refused to accept the defendant's telephone calls or respond to his letters; and had never met with him while he was incarcerated in Angola, although the defendant admitted that counsel visited him about six times at the jail in New Iberia, during which time they were in "total disagreement." [95]
The record shows that after allowing the defendant to speak about the above-described items, the trial judge reviewed all of the pending pro se motions filed by the defendant and denied them as duplicitous of defense motions already filed and heard. [96] The oral motion to dismiss or terminate Colwart as the defendant's attorney, was denied, as well. [97]
Nothing presented by the defendant demonstrates counsel's incompetence, unpreparedness or a bona fide conflict of interest. The trial judge's assessment was correct in that none of the specific instances of claimed ineffective assistance of counsel demonstrated professional error nor merited the trial court's removal of Colwart. We find no abuse of the trial court's discretion in denying the defendant's piecemeal pro se complaints about his counsel's preparation for trial.
Self-Representation
Appellate defense counsel asserts that the trial judge improperly denied the defendant a meaningful opportunity to exercise his right to represent himself at trial, possibly with stand-by counsel. Counsel argues the trial judge erroneously applied the standard to determine the defendant's capacity to act at trial, rather than his ability to waive counsel.
An accused has the right to chose between the right to counsel, guaranteed in the state and federal constitutions, and the right to self-representation. Bridgewater , XXXX-XXXX p. 17, 823 So.2d at 894 . However, the choice to represent oneself "must be clear and unequivocal." Id. "Requests which vacillate between self-representation and representation by counsel are equivocal." Id. Whether a defendant has knowingly, intelligently, and *148 unequivocally asserted the right to self-representation must be determined on a case-by-case basis, considering the facts and circumstances of each. Id.
The record shows that the self-representation of the defendant was first raised by the defense at the December 10, 2003 hearing, less than a month before trial. [98] After discussing the defendant's pro se motions which duplicated defense motions already acted upon, defense counsel Colwart indicated the defendant had more that he wanted to discuss at the hearing:
Colwart: Your Honor, earlier this afternoon, Ms. Broussard [defense co-counsel] and myself had talked to Mr. Leger about his motions that you just denied, and the subject matter came up about him possibly representing himself.
I just want to put it on the record right now, because he expressed an interest of a possibility of him representing himself.
And I just want to clarify, on the record, if — does he want to do that, and if so, you need to take the proper steps in determining whether he can be allowed to represent himself or not.
Court: All right. So, you —
Mr. Leger: Your Honor, between choosing bad counsel and representing myself, I would have no choice other but to represent myself.
Because Mr. Colwart has failed numerous times to file motions to protect my rights. This is the reason why I've had to file these motions on my own.
And being a layman in court proceedings, a lack of knowledge of applying the proper court procedures and articles, and therefore that's the reasons and causes why I have brought these motions to the Court's attention.
And they were denied based upon the defendant didn't allow the counsel to file them. And that was one of my arguments in one of the motions I had.
And, Mr. Colwart has waited until 15 days before trial to start preparing a defense, and I believe it's been — it prejudiced — its been prejudiced me; the time has been two years tomorrow since this occurrence have, and now, he chooses to put forth an effort to defend me.
At no time has he came and seen me since I've been housed at the Department of Corrections at Angola. Not once. And maybe a half a dozen times he visited me in New Iberia, but very briefly.
And, in the time we spoke on certain things, we have a total conflict of interest between me and Mr. Colwart. We're not on the same page.
*149 In the little time I've talked with Ms. Broussard, I've only met her one time for 45 minutes, and it seems that we have a better communication between the both of us, and state law says that the defense lawyers must work with the defendant and give notice.
And Mr. Colwart has failed to do that. I can't even make a collect phone call to his office because they won't accept it.
I wrote letters. He hasn't replied back. I had done that with Mr. Gary LeGros, too, and they failed to do that, as well.
So that's why I have filed the motions, Your Honor, on two separate occasions asking for Mr. Craig to be dismissed and appoint another counsel.
Court: All right. But that doesn't speak to — most of what you said doesn't speak to the desire to represent yourself. It still speaks to the desire to be represented by other counsel. Is that what you're telling me?
Mr. Leger: Well, Your Honor, I would like to participate in trial if it's allowed, but —
Court: Well, I — I mean, just over the course of the last ten or fifteen minutes that we've been in court, I have witnessed your participation with counsel and instructing your counsel as to what you would have them to present with respect to motions in court.
There's nothing that I can see that your counsel have done, nor this Court has done to prevent you from participating in your defense.
When it comes to representing yourself in these proceedings, your last comment was that you are not a person trained in the law. You're a layperson and it appears to me that you were pointing up your inadequacy to represent yourself in these proceedings.
So, more and more I'm hearing, or what you just told me, is not what I sense Mr. Colwart was pointing out.
There's not a desire on your part to represent yourself without — in front of the jury or present your case. The question is, you want someone else other than Mr. Colwart. Is that — am I saying it right?
Mr. Leger: Yes, Your Honor. You're saying it right. With me choosing between bad counsel, in which he has demonstrated that.
Today, out of the past two years, Your Honor, is the only time he's done anything where he's talked to me. We've been arguing for the past two years, and we've been bumping heads. And, like I've said, we haven't been on the same page.
I would feel more comfortable if Ms. Broussard would be lead counsel and I would ask the court to —
Colwart: That's something we could probably work out.
Broussard: I'm not certified to be lead counsel.
Court: No. Mr. Colwart. Mr. Colwart.
You brought up the issue of Mr. Leger wanting to represent himself. I don't think that's what he intended.
Colwart: One of the specific things he requested, Your Honor, was to be allowed to question the jurors and the witnesses himself. And I told him that wouldn't be allowed unless he was counsel — unless he was representing himself.
Court: Right. He cannot question witnesses.
*150 Colwart: That's what he means by being allowed to participate in the trial. He want to question certain — not all, I believe, but some of the witnesses that are going to be presented.
Court: No, he — I will direct him to either verbally give the question to his counsel or write it down and actively participate in that sense, but he's not trained, or presented to this Court any indication of skill and understanding with respect to presenting, or questioning, or examining, any witnesses or presenting argument in connection with his defense in this case.
So the motion to represent himself is denied. The motion to participate with counsel in the examination of witnesses or to present argument is denied, if that was the request. [99]
The record shows that the defendant did not make a "clear and unequivocal" assertion of his right to self-represent, rather, his request was "an obfuscated request to substitute appointed counsel because of his disagreement with current counsel's choice of trial strategy." Bridgewater , XXXX-XXXX p. 19, 823 So.2d at 895 . In Bridgewater , this court quoted from a federal court addressing a similar request:
A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel. The circumstances surrounding [the defendant's] purported waiver of his right to counsel and the assertion of his right to proceed without counsel in this case suggest more a manipulation of the system than an unequivocal desire to invoke his right of self-representation. Taking the record as a whole, we are satisfied that the district court was justified, when confronted with [the defendant's] vacillation between his request for substitute counsel and his request for self-representation, in insisting that [the defendant] proceed with appointed counsel.
Id., XXXX-XXXX p. 19, 823 So.2d at 895 , quoting United States v. Frazier-El, 204 F.3d 553 (4th Cir.), cert. denied, 531 U.S. 994 , 121 S.Ct. 487 , 148 L.Ed.2d 459 (2000). Here, too, based on this record, we find that the defendant's request for self-representation was an attempt to manipulate the court system, rather than a sincere desire to dispense with counsel.
Viewing this exchange as another request to obtain counsel other than Colwart, we find no abuse of discretion in the trial court's denial of the motion. This court has consistently held that a defendant's right to counsel of his choice "cannot be manipulated to obstruct the orderly procedure of the courts or to interfere with the fair administration of justice." Bridgewater , XXXX-XXXX p. 20, 823 So.2d at 896 . One month short of trial, the trial court clearly had no intention of delaying trial further to accommodate that request. Moreover, there was no justifiable basis for the motion.
Insofar as the defendant's request may be interpreted as a request to participate in his trial in some sort of "hybrid" manner as co-counsel, we find no abuse of the trial court's discretion in denying that request. This court has held that, "`[w]hile an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative.'" State v. Brown, XXXX-XXXX p. 29 (La.4/12/05), 907 So.2d 1, 22 , quoting State v. Bodley, 394 So.2d 584, 593 (La.1981). Even so, we find that the defendant was intimately involved in the *151 pre-trial and trial aspects of his case. Not only did the defendant file and argue pre-trial motions, [100] and obtain transcripts of all pre-trial hearings on motions, [101] we find that he did participate in significant ways in the defense which was presented at trial. The record shows that the defendant was informed about and selected the defense which was presented, [102] including his decision not to present argument regarding the responsive verdict of manslaughter. [103]
We find no error in the trial court's determinations regarding the defendant's representation, as raised in these assignments of error.
Suppression of Evidence
Assignments of Error 23-24
The defendant argues that the trial court erred in failing to suppress photographic identifications of him made by Evelyn Salone and Zeb LeBlanc. [104] The defendant contends that he sustained cuts to his face and ear during arrest which appear in the photographic array shown to these two witnesses. The defendant urges that, of the six-person line-up, he is the only one with such facial injuries. Consequently, the defendant argues that the photo array shown to these two witnesses was unduly suggestive, tainting the identifications of these two witnesses.
Motion to Suppress Identification
In State v. Higgins, XXXX-XXXX (La.4/1/05), 898 So.2d 1219 , cert. denied, ___ U.S. ___, 126 S.Ct. 182 , 163 L.Ed.2d 187 (2005), this court held:
as a general matter, the defendant has the burden of proof on a motion to suppress an out-of-court identification. La. Code Crim. Proc. art. 703(D). To suppress an identification, a defendant must first prove that the identification procedure was suggestive. . . . An identification procedure is suggestive if, during the procedure, the witness's attention is unduly focused on the defendant. . . . However, even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure.
Id., XXXX-XXXX p. 19, 898 So.2d at 1232-1233 .
In Manson v. Brathwaite, 432 U.S. 98, 116 , 97 S.Ct. 2243, 2254 , 53 L.Ed.2d 140 (1977), the Supreme Court held that despite the existence of a suggestive pre-trial identification, an identification may be permissible if there does not exist a "very substantial likelihood of irreparable misidentification." Under Manson , the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: 1) the witness' opportunity to view the criminal at the time of the crime; 2) the witness' degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Manson, 432 U.S. at 114-15 , 97 S.Ct. at 2254 .
*152 At trial, Detective Lirette testified how he compiled the photographic array which was ultimately shown to the witnesses, using men with common traits of race, hair, age, facial hair, weight and overall expression with the defendant's mug shot. [105] Detective Rivere obtained that photographic array and presented it to Evelyn Salone at the hospital on December 12, 2001, the day after she had been shot. The officer did not suggest to her which picture she should select. Detective Rivere also showed the same photo array later that same day to Zeb LeBlanc. The detective did not suggest in any way which picture Zeb should select. [106]
Evelyn Salone testified at both the suppression hearing and at trial, stating that she positively identified the defendant in the photo line-up. [107] She testified she had never seen the defendant before the night he shot her and her husband. However, she could see him as they both stood outside her trailer by the light of the streetlight in front of her home, as well as the lighted Christmas decorations on their home. She testified that she was able to get a good look at the defendant's face. Evelyn gave a description of the man who shot her and her husband from the moment the EMTs arrived in her yard. She viewed the photo array one day after the shooting and displayed a high degree of certainty. On the back of the defendant's photo, Evelyn Salone wrote "This is the one who shot me and Troy" above her signature. [108]
Zeb LeBlanc testified at the suppression hearing that he watched the defendant walking back and forth outside the trailer under a tree after he heard gunshots on the night of December 10-11, 2001. After he saw the inert body of his stepfather in the trailer and ran outside to be with his mother, Zeb was confronted by the defendant, who demanded to know where "she" was. The next day at the hospital, the photo array was shown to him. Zeb was not positive that the photograph of the defendant was of the man he had seen, but wrote on the back of the picture "[t]his looks like him but I'm not positive. I remember a yellow jacket and probably a white baseball cap. He was maybe ten feet away. I was bending over with my mom." [109]
At trial, Zeb again testified that he saw a man walking outside the trailer after the shooting. He stated the man "looked sort of puzzled like he was looking for something. He looked a little aggravated." [110] Zeb testified that he got a good look at the man's clothing at that time but was unable to get a good look at the man's face because he was underneath the tree. [111] After he relocated to his mother's side, Zeb was able to get a good look at the man's face. As Zeb stood up after crouching by his mother's side, the man who had been walking underneath the tree stood in front of Zeb and asked him "where is she, where is she?" At that time, the man was about six to eight feet from Zeb, standing face to face. [112]
*153 Analyzing the witnesses' testimony under the Manson v. Brathwaite factors, we find that both eye-witnesses had excellent opportunities to view the defendant. The street light at the end of the driveway and the Christmas lights on the residence itself provided light for them to see the defendant. Both Evelyn and Zeb were standing face-to-face with the defendant at some point. Considering that the defendant kept yelling at both of the family members, their degree of attention was high as they tried to ascertain what the defendant wanted. Both witnesses' descriptions of the defendant were accurate. In fact, Evelyn testified that she told everyone what the defendant looked like from the time emergency medical personnel arrived because feared that she would die. Evelyn was positive in her identification of the defendant. Zeb was not positive as to the defendant's mug shot photograph, but was positive about the clothes the man had been wearing and his identification of the defendant in person. Both Evelyn and Zeb made an independent in-court identification of the defendant at trial. [113]
During trial cross examination, defense counsel asked Detective Lirette, as well as Evelyn Salone and Zeb LeBlanc, whether they noticed that the only person in the six-person photographic array who had cuts on his face was the defendant. None of the three witnesses indicated that he or she had noticed any cuts on the face of the defendant. [114] Apparently, the distinction had minor, if any impact, on the eye-witnesses. Our review of the photographic array shows that the cuts are, indeed, minor and not such as would be unduly suggestive. Clearly, the cuts did not focus any undue attention on the defendant.
Even assuming the line-up was suggestive, however, the defendant fails to demonstrate that Evelyn or Zeb misidentified him. Evelyn Salone was unwavering in her positive identification of the defendant; Zeb LeBlanc was tentative, but correct on the characteristics he remembered. Based on the totality of the circumstances, we find no substantial likelihood of misidentification. The trial court did not err in denying the motion to suppress the identification. [115]
Motion to Suppress Evidence
The defendant claims the trial court erred in failing to grant his pro se motion to suppress evidence. Specifically, the defendant contends that the police did not comply with the strictures of the warrant requirement of the Fourth Amendment with respect to the jacket they seized from him upon arrest and to a pair of gloves taken from his truck parked outside his residence.
The record shows that, immediately after the defendant's arrest, the police filled out an affidavit for a search warrant for his residence and his vehicle, [116] as well as a separate affidavit for a search warrant for the "clothing and property of Donald Leger, Jr." [117] The affidavit supporting the warrant seeking the defendant's clothes described the requested clothing as "a white t-shirt type shirt, white insulated shirt and a yellow wind breaker, jeans and boots." [118] It was noted that the "yellow wind breaker, white t-shirt, white insulated shirt were taken at the time of his booking." The affidavit noted that the jeans *154 and boots were placed in a property locker at the Franklin Police Department. [119]
The search warrant which was issued authorizing the search of the defendant's residence and any vehicles on the property identified the following items which the police were authorized to seize as: "weapons, ammunition, receipts for ammunition and weapons, documents on weapons, evidence of a pregnant {sic} test kit, and tape." [120] The search warrant which was issued to search for the defendant's clothing authorized a search of "The Franklin Police Dept. Locker 2a." [121] In addition, the defendant signed a consent to search form on the morning of December 12, 2001, authorizing the Franklin Police Department to search his home and truck.
The yellow windbreaker jacket was removed from the defendant at the St. Mary's Parish jail, not the Franklin Police Department's jail. Thus, the jacket was in a different location than the one authorized by the warrant for the seizure of the defendant's boots and jeans. However, the seizure of the defendant's jacket at the St. Mary's Parish jail, and the police's retrieval of that jacket without a warrant, was valid. The trial court denied the defense's motions to suppress evidence after a hearing. [122]
A search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. Taylor , XXXX-XXXX p. 5, 838 So.2d at 738 . In State v. Wilson, 467 So.2d 503, 517 (La.1985), cert. denied, 474 U.S. 911 , 106 S.Ct. 281 , 88 L.Ed.2d 246 (1985), this court held "the right of the police to conduct a personal effects inventory search at the time of an arrested person's booking is a recognized exception to the search warrant requirement." This right to seize items after lawful arrest and during booking is not completely unfettered, as the item seized must be contraband, an instrumentality of the crime, a fruit of the crime, or evidence of a crime. Wilson, 467 So.2d at 517 . "In order for the seizure of defendant's clothing under these circumstances to be upheld, the state must affirmatively show the existence of probable cause that the thing seized is somehow related to a particular crime." Id.
At the time the yellow jacket was taken from the defendant, the police had descriptions of the perpetrator of the shooting and murder of Troy Salone and the shooting and injuring of Evelyn Salone from the eyewitnesses, Evelyn Salone and Zeb Le-Blanc. This description included the information that the perpetrator had been wearing a yellow windbreaker-type jacket. The police's conclusion that the yellow jacket would eventually aid in the identification of the defendant as the perpetrator of the crime was reasonable. The defendant's jacket potentially constituted evidence of his involvement in the murder. Here, as in Wilson , "the state had probable cause to seize the clothing as evidence of criminal activity, and the police seizure and retention of such evidence without warrant was lawful." Id., 467 So.2d at 517 .
The gloves at issue were seized from the back of the defendant's truck during the officers' execution of the search warrant of the defendant's residence and vehicle. The possible significance of the gloves to this case was explained by Zimmerman, who testified both at the suppression hearing *155 and at trial that, immediately prior to removing her from his house and placing her in her van, the defendant grabbed the gun and some gloves, stating "I can't go back to prison." [123] The officer who seized the gloves explained that he knew the perpetrator may have used gloves during this crime, so he took the gloves from the rear of the truck "as a sample." [124]
Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. California, 496 U.S. 128, 136-137 , 110 S.Ct. 2301, 2308 , 110 L.Ed.2d 112 (1990). The fact that the gloves were not listed as items on the search warrant does not invalidate the officer's seizure when the possible criminal significance of the gloves was apparent to the searching officer.
The trial court properly denied the motion to suppress the yellow jacket seized from the defendant at booking and the gloves seized from the back of the defendant's truck during execution of a search warrant.
Cause Challenges of Prospective Jurors
Assignments of Error 17-19
The defendant asserts in these assignments of error that the trial court's voir dire rulings regarding six prospective jurors deprived him of his constitutional rights to full and complete voir dire, to due process, and to reliable and proportionate sentencing in this capital case. Specifically, the defendant complains that the trial judge erroneously denied cause challenges on three prospective jurors raised by the defense and erroneously granted state cause challenges on three other prospective jurors.
La. Const. art. 1, § 17 guarantees that "[t]he accused shall have the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law." La.C.Cr.P. art. 799 provides the defendant in a capital case with twelve peremptory challenges. "Therefore, when a defendant uses all of his peremptory challenges, a trial court's erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his const

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1592017. Public record. Not legal advice.