Petition for Writ of Certiorari — Shea v. Louisiana

10. 835980 |

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

KEVIN MICHAEL SHEA, PETITIONER

V.

STATE OF LOUISIANA

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

CADDO PARISH INDIGENT

DEFENDER OFFICE

FRANCES BAKER JACK

ATTORNEY FOR PETITIONEF

311 Slattery Building

Supreme Court, US.

FILED

DEC 1 7 1982

Klovender l. Stevas, Clerk

Shreveport, Louisiana 71101

(318) 221-2220

QUESTION PRESENTED

Whether the rule reconfirmed in Edwards vy. Arizona,

451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that the

Fifth and Fourteenth Amendments require suppression of

statements made during custodial investigation after a

defendant has invoked his right tc counsel, applies to a case

pending on direct appeal when Edwards was decided.

of-

TABLE OF

CONTENTS

QUESTION PRESENTED .....

TABLE OF CONTENTS .....

TABLE OF AUTHORITIES ....

OPINIONS BELOW. VW

JURISDICTION... sw» ws ww

CONSTITUTIONAL PROVISIONS .

STATEMENT OF CASE .....

REASONS FOR GRANTING WRIT .

CONCLUSION . . «. «© «© © © «© «

APPENDIX A

OPINION OF LOUISIANA SUPREME COURT

ON REHEARING .....

DISSENTING OPINION ..

* „ * * * * * * * 1lA- BA

* . * * . * . . * 9 — 1 4A

OPINION OF LOUISIANA SUPREME COURT ON

ORIGINAL REAN 15A-29A

APPENDIX B

ASSIGNMENT OF ERRORS IN 111,684A ....,.. 1B-2B

ASSIGNMENT OF ERRORS IN 111,684 ce e © e 3B

TABLE OF AUTHORITIES

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880,

Ed. 81)

Hunt v. State of Texas (Tex. App. 1982)

Oregon v. Tyler, 643 P2d 379 (Ore. App. 1982)

People v. Cerezo, 635 P2d 197 (Colo. 1981)

— v. Paintman, 412 Mich. 518, 315 Wad 418

ote of Arizona ». Platt, 637 Pad 1073 (Ariz.

State of Louisiana vs. Crosby, 338 So.2d 584

State of Minnesota v. Brown, 317 N.W.2d 714

nn.

United States Constitution, Amendment Five

United States Constitution, Amendment Fourteen

Louisiana Revised Statutes 14:64

28 USC 1257(3)

-tii-

Petitioner, Kevin Michael Shea, respectfully prays that

a Writ of Certiorari issue to review the judgment and opinion

of the Louisiana Supreme Court rendered on October 18, 1982.

OPINIONS BELOW

The opinion of the Louisiana Supreme Court on rehearing,

not yet reported at this time, appears in the appendix here-

to.

JURISDICTION

The judgment of the Louisiana Supreme Court on rehearing

was rendered on October 18, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

Amendment V. No person .. . shall be compelled in any

criminal case to be a witness against himself... .

Amendment XIV. No State shall .. . deprive any person

of life, liberty, or property, without due process of

„

STATEMENT OF THE CASE

After trial by jury in state district court in Caddo

Parish, Louisiana, the petitioner, Kevin Michael Shea, was

convicted of the offense of armed robbery (La. R.S. 14:64)

(Criminal No. 111,684-A). He pled guilty to a second count

of armed robbery and reserved his right to appeal the denial

of his motion to suppress inculpatory statements under State

of Louisiana v. Crosby, 338 So. 2d 584 (La. 1976) (Criminal

No. 111,684). He was sentenced to consecutive sentences of

seventeen years at hard labor on the first conviction and

five years imprisonment at hard labor on the second.

The petitioner was arrested on July 2, 1979. He was

taken to the Shreveport Police Station, where he was turned

over to Detectives Smith and Snell for questioning. The

petitioner was read his Miranda rights and he signed the

standard Miranda card. Petitioner stated that he did not

want to make any statements until he saw a lawyer. The

interview was terminated at that point.

The following afternoon Detective Snell returned to the

Shreveport City Jail, where he told petitioner that he was to

be transferred to the parish jail. Snell asked Shea if he

wanted to talk about the case. After being readvised of his

rights and signing the Miranda rights card, Shea gave a

statement in which he confessed to committing the robberies.

At trial, held in April 1980, the State introduced the

oral confession given by the petitioner on July 3rd. As the

State sought to lay the foundation for the admissibility of

the confession, the petitioner objected to its admissibility

on the grounds that there had not been compliance with

Miranda procedures. The trial court overruled the objection,

finding that the petitioner had waived his right to counsel.

On appeal to the Louisiana Supreme Court, petitioner

raised the issue of the trial court's error in admitting the

confession into evidence. (Assignments of Error included in

Appendix.) In its original opinion, dated January 25, 1982,

that court recognized that there had been a violation of the

standard governing police interrogation as set forth in

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d

378 (1981). The court went on to hold, however, that

Edwards, decided on May 18, 1981, was not retroactive and,

therefore, did not apply to the petitioner's case.

-2-

Petitioner applied for a rehearing with the Louisiana

Supreme Court on the issue of retroactivity. The rehearing

was granted. On October 18, 1982, the court again held that

Edwards is not retroactive. That decision became final on

November 1, 1982, after the expiration of fourteen days from

the issuance of the opinion. A second rehearing was not

requested.

REASONS FOR GRANTING THE WRIT

This case presents the important question of whether the

principles reaffirmed in Edwards v. Arizona are to be applied

retroactively. The Louisiana Supreme Court has responded

negatively to the question; however, other courts have held

that Edwards should be given retroactive application. There

is a conflict between the decisions of the highest courts of

several states. The conflict can only be resolved by this

Court granting petitioner's writ of certiorari.

In People v. Paintman, 412 Mich. 518, 315 N.W.2d 418

(1982), the Michigan Supreme Court held that Edwards did not

announce a new rule but rather clarified further and recon-

firmed the dictates of existing law. It viewed Edwards as

Simply the most recent explication of Miranda. Based on that

conclusion, the court found that it was “unnecessary to

analyze the question of retroactivity under traditional

standards." Id at p. 423. The state of Michigan sought

certiorari and this Court denied the application.

U.S. , 102 s. t. 73 1. Ed. 2d 1292 (1982).

In State v. Brown, 317 N. w. 2d 714 (Minn. 1982), the

Minnesota Supreme Court held that Edwards is to be applied

retroactively. That court agreed with the trial court's

conclusion based on “the clear language used by the Court in

Edwards that the Court saw its holding not as establishing a

new rule but as reconfirming what the Court had said in

Miranda v. Arizona." Id. at p. 715.

The courts of appeal in Oregon and Texas have held that

Edwards is to be applied retroactively. Oregon v. Tyler,

643 P2d 379 (Ore. App. 1982); Hunt v. State of Texas (Tex.

App. 1982). Other courts have applied Edwards to cases

pending when the decision was announced without addressing

the question of retroactivity. State of Arizona v. Platt,

637 P2d 1073 (Ariz. App. 1981); Leople v. Cerezo, 635 P2d 197

(Colo. 1981) (er banc).

The Edwards opinion itself recognizes that a new rule

was not being formulated. This Court stated that "Miranda

itself indicated that the assertion of the right to counsel

was a significant event and that once exercised by the

accused, the interrogation must cease until an attorney is

present. 451 U.S. at 485, 68 L. Ed. ad at 386, quoting

Miranda v. Arizona. The opinion then refers to the line of

cases that have followed Miranda and never departed from the

view initially established. In summary, the Court states:

We reconfirm these views and, to lend

them substance, emphasize that it is

inconsistent with Miranda and its pro-

geny for the authorities, at their

instance, to reinterrogate an accused

in custody if he has clearly asserted

his right to counsel. (Emphasis added.)

451 U.S. at 485, 68 L.Ed.2d at 387.

The Louisiana Supreme Court erred in holding that "the

decision in Edwards was breaking new ground in the area of

police procedure." The Edwards decision was nothing more

than the most recent explication and reaffirmation of the

right of an accused to have counsel present during custodial

interrogation. The decision should be applied retroactively.

CONCLUSION

The question of the retroactivity of Edwards has not

been addressed by this Court. State supreme courts are

divided on the issue.

It is an important federal issue.

Petitioner respectfully prays that this Court will grant the

writ of certiorari

petitioner.

resolve the issue favorably to

Respectfully submitted,

Office

FRANCES BAKER JACK

ATTORNEY FOR PETITIONER

311 Slattery Building

Shreveport, Louisiana 71101

(318) 221-2220

oct 18 1952

SUPREME COURT OF LOUISIANA

NO. 81-KA-0377

c/w

NO. 61-KA-0378

STATE OF LOUISIANA

Vv.

KEVIN MICHAEL SHEA

ON REHEARING

MARCUS, Justice

We granted a rehearing in this case to re-

consider our decision that the trial court correctly

refused to suppress defendant's inculpatory statement.

In Miranda v. Arizona, 384 U.S. 436 (1966),

the United States Supreme Court held that the prosecution

may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation unless the accused is

first advised of, and subsequently waives, his right to

remain silent and right to the presence of an attorney.

However, it was not clear from Miranda the standard to be

applied in determining whether a person in custody has

waived these rights.

Michigan v. Mosley, 423 U.S. 96 (1975),

sought to answer Miranda. Mosley was arrested in connec-

tion with two robberies and was advised of his Miranda

rights. Mosley subsequently informed the police that he

1. Specifically, the accused must be warned that he has the

right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any ques-

tioning if he so desires.

iA

did not wish to answer any questions about the robberies,

whereupon the police ceased the interrogation. After an

interval of approximately two hours, Mosley was taken by

police to a different interrogation room and was sin

given his Miranda warnings. Ir addition, he signed a wai-

ver of rights form. The police then told Mosley that he

had been implicated in a homicide. Mosley then made a

statement implicating himself in the homicide. The Court

held:

[T]he admissibility of statements

obtained after the person in cus-

tody has decided to remain silent

depends under Miranda on whether

his rights to cut off questioning

was scrupulously honored. 423

U.S. at 104. (Emphasis added.)

The Court, fincine that Mosle)'s “right to

cut off quest ionz ne“ was fully respected, held that the

admission in evidence of hist inmeriminating statement did

not violate the principles of Mirands. However, the Court

observed in footmote 7 that:

The present case does not involve

the procedures to be followed if

the person in custody asks to

consult with a iawyer, since Mos-

ley made no such request at any

time. Those procedures are de-

tailed in the Miranda opinion....

\ Emphasis -)

The Court gave no reasons for distinguishing

between the right to remain silent and the right to coun-

sel. Thus, Mosley did not resolve the issue of whether the

police could resume questioning of an accused following his

invocation of the right to counsel.

Without an express statement of law on thir

issue, lower federal courts reached varied results. It

- 2A

appears that a majority of the courts did not make a dis-

tinction between the right to counse] and the right to

remain silent. In so doing, the courts either used the

*scrupulously honor” test’ of Mosley or the “knowing and

intelligent waiver® test? as dictated in Johnson v.

zetest, 304 U.S. 458 (1938).* A minority of the

courts” applied a per se rule against further police

interrogation once the accused invoked his right to counsel.

This court, when confronted with the issue,

that is, whether the police can resume questioning of an

accused following his invocation of the right to counsel,

seems to have adopted the “scrupulously honor” test. Stete

v. Thucos, 390 So. 2d 1261 (Le. 1960); State v. Manning,

380 So. 26 46 (La. 1960).

iguez- 569 F. 2d 482

. See United States v. Rodriguez-Gastelum,

eS 5. cert. denied, 436 U.S. 919 (1978); United 8

States v. Collins, 462 F. 20 792 (2d cit.), cert. deniec,

409 U.S. 986 (1972).

4th

a e.c., United States v. Grant, 549 F. 2d 942

ei *" denied, 432 U.S. 908 (1977); Cobbs v. 7

Robinson, 526 F d 1331 (26 Cir. 1975), cert. denied, 42

U.S. 947 (1976).

4. In Johnson v. Zerbst, 304 U.S. 548 (1938), the Supreme

Court held:

A waiver is ordinarily an inten-

tional relinguishment of a known

right or privilege. The determi-

nation of whether there has been

en intelligent waiver .. . must

depend, in each case, upon the

particular facts and circumstances

surrounding that case, including

the background, experience, and

conduct of the accused.

707 (1979);

Accerd, e. Fare v. Michael C., 442 U.S.

North Caro as v. Butler, 441 U.S. 369 (1978).

i h Cir.

° United States v. Massey, 550 F. 2d 300 (5t

28 7 nited States v. Clark, 499 F.2d 802 (4th 1 *

1972); United States v. Priest, 409 F.2d 491 (Sth Cir.

1969).

In Manning, defendant was arrested at 11280

. ., Given his Miranda warnings and taken to the police

Station. At the station at 2:25 a.m., he Signed s waiver

of rights form. Later at 5:03 @.m., while the officer was

asking Manning if he understood his Miranda rights, he

Stated that he wanted an attorney. Questioning ammediateiy

cessed and defendant was told that an ettorney would be

made avéilable to him. As the officers began prepering to

leave the interrogation room, defendant announced that he

did not need an attorney and that he wanted to *“cleer the

4ir.*° Manning then made a statement at 5:06 a.m. (abou.

five minutes after he had invoked his right to counse)).

Under these facts, we concluded that Manning's Miranda

rights had not been violated.

In Thucos, defendant was arrested about mid-

night, advised of his Miranda rights, and taken to the

Stationhouse where he was again informed of his rights. He

elected not to sign the waiver of rights form and stated

that he die not want to talk and that he would like to see

an attorney. The officers allowed defendant to make @ cal!

but testified that they did not know whether he reached an

attorney or not. Thereafter, defendant was brought to his

cell. Later that morning, at 9:00 a.m. (some nine hours

after invocation of his right to counsel), defendant was

brought to the interrogation room and interrogated. Thucos

was again advised of his Miranda rights, signed a waiver of

rights form, and made an oral inculpatory statement. be-

fendant was then returned to his cell. The next morning,

he was once again taken from his cell to the interrogation

room where he was advised of his rights. A second

-4A

inculpatory statement was then made by defendant. Under

these facts, we concluded that Thucos rights had not been

*scrupulously honoted“ and thus his statements were in-

admissible. In distinguishing Manning, we stated:

The officer's initiation of fur-

ther questioning in this case,

after defendant had asserted his

right to be silent and right to

have counse] present during ques-

tioning, is fata] to the admissi-

bility of the statements made by

the defendant.

Whether an accused's rights are “scrupulously

honorec® should depend on the particular facts of each

case. Stated another way, it depends on the totality of

the circumstances. The fact that the officer initiates

further questioning after the accused has invoked his right

to counse] should be only one of the factors considered in

Getermining whether his right to counsel has been "Scr upu-

lously honored.* Other factors, such as the time delay

between the original request and subsequent interrogation,

whether Miranda warnings were given before each separate

interrogation, whether waiver of rights forms were Signed,

and whether or not pressures were asserted on the accused

by the police between the time he invoked his right to

counsel and the subsequent interrogation, should be con-

sidered in making this determination. In Thucos, we most

probably placed too much emphasis on the officer's initia-

tion of further questioning in reaching our cone Ius ion.

6. In 4478888866 10171 U.S. * 101 S. Ct. 1880

(1981) sc ully later in this opinion), initiation

was made the crucial factor to be considered. towever, at

the time of the decision in 0 had not been

decided and for reasons to be discus ater, we hold that

Edwards is non-retroactive.

In the instant case, Shea was arrested on the

afternoon of July 2, 1979, and was fully advised of his

Miranda rights. He was taken immediately to the police

Station where he was again advised of his rights. He also

signed a waiver of rights form. Shea told the detectives

(Snell and Smith) that he did not want to talk about the

case until he had seen an attorney. The interview was

immediately terminated. After an interval of some twenty-

four hours, Snell returned and told Shea that he was about

to be transferred. Snel] asked Shea if he wanted to talk

about the case. Snel] readvised Shea of his Mirande rights

and defendant again signed a waiver of rights form. Shea

then made a statement about his involvement in the rob-

beries. Undet the totalicy of the circumstences, we con-

sider that Shea's right to counse] was “scrupulously

honored.* hence, his inculpetory statement 18 admissible

in evidence.

On May 16, 1961, Edwards v. Arizona,

v. s. 101 S.Ct. 1680 (1961), was decided. Edwards

held that when an accused has invoked his right to have

counse] present during custodial interrogation, 6 valid

waiver of that right cannot be established by showing only

that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights.

The Court further held that an accused, having expressed

his desire to dea] with the police only through counsel, 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.

In the instant case, Shea invoked his right

to counsel. Counsel was never made available to him nor

did Shea initiate further communication with the police.

To the contrary, the police re-initiated further conversa-

tions with him. Hence, under Edwards, the resumption of

interrogation was not @ product of a voluntary waiver and

therefore the statement would be inadmissible.

However, Shea's statement was made on July 3,

1979, some ten months prior to the Edwards decision (May

16, 1961). The issue then is whether Edwards should be

given retroactive effect.’ We think not.

In United States v. Johnson, U.S. 9

102 S.Ct. 2579 (1982), the Supreme Court stated:

Where the Court has expressly

declared a rule of criminal proce-

dure to be a “clear break with the

past, it almost invariably has

gone on to find such a newly-

minted principle non-retroactive.

The Edwards Court, upon announcing its new ruling, stated,

"We now hold .. .* (emphasis added), which indicates that

the Court felt that this holding was breaking new ground in

the area of police procedure. The ruling was unantici-

pated. Law enforcement authorities had relied on the

——ũ—————— — — — —— —— —wꝛ———————— —— — ee ee ee eee

7. Shortly after wards was decided, the Supreme Court

granted certiorari in s number of cases which were appa-

rently pending on direct review in that Court, vacated the

judgments and remanded for further consideration in light

of 1 2117 This action does not mean that the Supreme

Court w ultimately decide to give full retroactive ef-

fect to Edwards.

8. “In the course of making that holding [Edwards), Justice

White established a * The Supreme

Court, 1960 Term, 95 Harv.L.Rev. -82) (emphasis

added).

»The instant majority, by establishing the per se rule,

went beyond what was necessary to exclude the confession....

[footnote 6 continued on next page)

— 7

old standards. In the instant case, the police did not

know that once Shea requested counsel, further interro-

gation must cease until counse] had beer made available to

him, unless he (Shea) initiated further communication bin-

self. The rule, therefore, as pronouncec in Edwards is a

"clear break with the past“ and thus is non-retroactive.

In sum, the trial court correctly refused to

suppress defendant's inculpatory statement.

DECREE

For the reasons assigned, out origina] opin-

ion is reinstated.

[continuation of footnote 8)

This new rule protects the suspect's choice to be free from

interrogation until he consults with counsel. ... The

Court could have at least noted that its new rule was not

the most faithful reading of Miranda." 33 U. Fla. L. Rev.

768, 797 (1981) (emphasis ).

*The Court instead seized upon the opportunity to announce

@ broad prophylactic rule in direct opposition to the pre-

vious trend toward limiting the scope of Miranda.“ 23

Ariz. L. Rev. 1391, 1400 (1981).

Oer fa

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA

VERSUS NO. 81-KA-0377

c/w 81-KA-0378

KEVIN MICHAEL SHEA

O Justice, dissenting.

7 1 dissent from the majority Opinion. In State v.

Thucos, 390 80. 2d 1261 (La. 1966) this Court held that

inculpatory statements made by the defendant had to be

suppressed where defendant had asserted his right to consult

with an attorney but was nevertheless again questioned by

police officers before he had an opportunity to do so. Under

those circumstances, we found that the state had not met its

burden of proving that the defendant's assertion of his right

to an attorney had been “scrupulously honored.” The instant

case is indistinguishable from Thucos. Accordingly, the

inculpatory statements made by this defendant pursuant to

questioning initiated by the police officers after defendant

had asserted his Miranda rights and requested an opportunity to

consult with an attorney should likewise have been suppressed.

14

The majority opinion correctly states that the

United States Supreme Court held, in Miranda v. Arizona, 384

So. 2d 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966), that the

prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation unless the

accused is first advised of, and subsequently waives, his right

to remain silent and his right to the presence of an attorney.

However, the majority falls into error when it finds that

Miranda did not make clear, under the circumstances involved in

this case, the standard to be applied in determining whether a

person in custody waived these rights.

Miranda might not have made clear the standard to

be applied in a situation where the accused merely chooses to

remain silent (as opposed to asserting his right to consult an

attorney). Michigan v. Mosely, 423 U.S. 96, 96 S.Ct., 321,

46 L. Ed. 2d 313 (1975). However, on the question of what

procedure should be utilized where the accused asserts his

right to counsel, the Court in Miranda specifically stated:

Once warnings have been given,

the subsequent procedure is clear

[k the individual states

that he wants an attorney, the

interrogation must cease until an

attorney is present.

I fail to see what the majority finds unclear

about this standard as it relates to this case. In fact, fully

aware of these expressions by the high court, this Court hela,

in State v. Thucos, supra, that where the defendant had

requested to see an attorney before answering questions, and

the officers had again initiated questioning *he tollowing day

without the defendant's having consulted with an attorney in

the interim, the state had not met its burden of proving that

the defendant's rights had been “scrupulously honored." Wwe

found the Thucos case to be distinguishable from our earlie:

decision in State v. Manning, 36U Co.2u 46 (La. IS o, where it

BEST AVAILABIE COPY aaame

was found that the defendant's rights had been “scrupulously

honored” because the defendant was the one to initiate

communications with the officers after previously asserting his

rights.

Yet the majority finds that Thucos is not

dispositive of this case because other factors should be

considered (other than that the defendant asserted his right to

counsel and was nevertheless acuin questioned by the officers)

in determining whether a defendant's rights were scrupulously

honored, and because “we most probably placed too much emphasis

on the officer's initiation of further questioning in reaching

our conclusion“ in Thucos. I find it difficult to understand

how the majority can conclude that our emphasis might have been

misplaced in Thucos, since, not six months later, the United

States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101

S.Ct. 1880, 68 L. Ed. 2d 378 (1981) came down with the exact same

result, likewise placing its emphasis on the defendant's

assertion of his right to counsel coupled with the initiation

by the officers of further questioning. The Court in Edwards

held:

[Although we have held after

initially being advised of his

Miranda rights, the accused may

himself validly waive his rights

and respond to interrogation, see

North Carolina v. Butler, supra,

441 U.S., at 372-376, 99 S.Ct., at

1757-1759, the Court has strongly

indicated that additional

safeguards are necessary when the

accused asks for counsel; and we

now hold that when an accused has

invoked his right to have counsel

- present during custodial

interrogation, a valid waiver of

that right cannot be established

by showing only that he responded

to further police-initiated

custodial interrogation even if he

has been advised of his rights.

We further hold that an accused,

such as Edwards, having expressed

his desire to deal with the police

only thorugh counsel, is not

subject to further interrogation

)

by the authorities until counsel

has been made available to him,

unless the accused himself

initiates furthe: communication,

exchanges or conversations with

the police. (Emphasis added.)

Perhaps the majority feels that the United States

Supreme Court has misplaced its emphasis also. However, that

is not a question for our determination. Therefore, whether

Edwards is retroactive or not, the majority falls into serious

error in cutting back on the standard set out in Thucos, where

the identical position has since been taken by the United

States Supreme Court.

Finally, the majority finds that Edwards should

not be given retroactive effect because it created a new rule.

While it is arguable whether Edwards created a 'ne“ rule at

al’ (to be discussed further below) in view of its reliance on

Miranda, it certainly is clear that it did not create a “new”

rule in Louisiana since we had previously rendered the Thucos

decision on the same issue with the same result.

Furthermore, I believe that Edwards v. Arizona,

supra, should be given retroactive effect. Although the United

State Supreme Court has not specifically addressed the issue of

prospective/retrospective application of Edwards, its actions

clearly indicate that Edwards is not to be applied

prospectively only. One week after handing down Edwards, the

United States Supreme Court granted certiorari in six Cases

which involved the same issue. In each case, the petitioner

was a defendant whose statement had been ruled admissible by

the trial court and whose conviction had been affirmed on

appeal. -Blakney v. Montana, 451 U.S. 1013, 101 S.Ct. 2999, 69

v. Ed. 20 384, (1981) 71 White v. Pinkbeiner, 451 U.S. 1013, 101

S.Ct. 3000, 69 L. Ed. 2 385, (1881) 22 Leuschner v. Maryland,

1605 Pp. 2d 1093 (Mont. 1979).

2611 F.2d 186 (7th Cir. 1979).

——

18. A

———

)

(1961);> Monroe v. Idaho, 451 U.S. 1014, 101 S.Ct. 3001, 69

L.Ed.2d 385, (1981);4 Wantland v. Maryland, 451 U.S. 1014,

5 and Janes v.

101 S.Ct. 3001, 69 L. Ed. 2d 386 (1981);

Illinois, 451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 385

(1981).© One month later the Court followed this same

procedure in Williams v. Ohio, 452 U.S. 935, 101 S.Ct. 3073, 69

L.Ed.2d 949 (4861). 7 The Court vacated the judgments and

remanded the cases to the courts below for “further

consideration in light of Edwards v. Arizona." This procedure

is contrary to that adopted by the Court following its decision

in Miranda. Johnson v. New Jersey, 364 U.S. 719, 86 S.Ct.

1772, 16 L.Ed.2d 682 (1966), decided one week after Miranda,

directed that Miranda would apply only to cases in which the

trial began after the date of the Miranda decision.

The belief that Edwards is to be applied to this

case is further supported by People v. Paintman, 412 Mich 516,

315 N.W.2d 418 (1982), in which the Michigan Supreme Court,

relying upon Edwards, ruled that Paintman's pre-Edwards

Statement was inadmissible. The state of Michigan sought

certiorari. The United States Supreme Court denied the

application U. 8. 102 8s. ct. 50 L. u. 3935 (May

24, 1982). Accord: Connecticut v. Smith, __ U.S. „ 102

S.Ct. 1441 (1962).

Actually, the question whether to accord

retroactive or prospective application to a decision of the

United States Supreme Court only arises when that Court

announces à new rule. Johnson v. United States, U. 8s.

102 S.Ct. „ 31 cr. L. 3100 (decided June 21, 1982); Brown v.

Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L. Ed 2159 (1980);

345 nd. App. 323, 413 K. 2d 227 (1980).

4101 Idaho 251, 611 P.2d 1036 (1980).

5413 K. 2d 1376 (Ct. Spec. App. Md. 1980).

682 111. App. 3d 551, 37 111. bec. 934, 402 N.E.2d 936

(1980).

7No cite below reported.

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 17451, 14 L.Ed. 2d

1601 (1965); Battie v. Estelle, 655 F. 2d 692 (Sth Cir. 1981).

In my view, Edwards announces no new rule regarding the

admissibility of statements obtained by the police after a

defendant has invoked his right to counsel. The United States

Supreme Court in Edwards specifically stated that the use of

Edwards’ confession at trial 'violsted his rights under the

Fifth and Fourteenth Amendments as construed in Miranda.* 451

U.S. at 480, 101 S.Ct. at 1882 (emphasis supplied). Noting

that Miranda required that once an accused asserted his right

to counsel, “the interrogation must cease until an attorney is

present,” the Court briefly discussed cases after Miranda which

applied the dictates of Mir o the particular facts

presented in those cases. Court then concluded:

We reconfirm these views and

to lend them substance, emphasize

that it is inconsistent with

Miranda and its progeny for the

authorities, at their instance, to

reinterrogate an accused in

custody if he has clearly asserted

his right to counsel. 451 U.S. at

Therefore, because I think Edwards v. Arizona,

Supra, should be applied retroactively, and in any event, State

v. Thuchos, Supra, is dispositive of the issue, holding that

questioning is not to be initiated by police once the deiendant

has asserted his right to counsel until counsel has been made

available to him, I dissent from the majority opinion.

Be

2

5

JAN 25 198

SUPREME COURT OF LOUISIANA

NOS. 81-KA-0377

AND 81-KA-0378

STATE OF LOUISIANA

Versus

KEVIN MICHAEL SHEA

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT

PARISH OF CADDO,

HONORABLE EUGENE W. BRYSON, JR., JUDGE

SWIFT, Justice Ad Hoc*

Defendant, Kevin M. Shea, has appealed two armed

robbery convictions in Caddo Parish, one of Tony Tuminello

at his Phillips 66 service station on July 2, 1979, and the

other of Delores C. Dick at the Quick Mart Grocery Store on

June 29, 1979. The first appeal involves Shea's conviction

by a unanimous jury after a trial. The other is a “Crosby

ype" appea) in connection with a guilty plea bargain.* The

fendant was sentenced in the first instance to 17 years and

JIE

a 7 2 in the other case to 5 years, both at hard labor. The sentences

were imposed to run consecutively, without benefit of parole,

probation or suspension of sentence.

FACTS

Mr. Tuminello was robbed of cash and checks by two

men after one had fired a pistol shot into the floor. When

1. State v. Crosby, 338 So. 2d 584 (La. 1976).

*Judges E. L. Guidry, Jr. and G. William Swift, Jr.

of the Court of Appeal, Third Circuit, and Judge Robert J.

Klees of the Court of Appeal, Fourth Circuit, participated

in this decision as Associate Justices ad hoc, joined by

Associate Justices Pascal F. Calogero, Jr., James L. Dennis,

Jack C. Watson and Harry T. Lemmon. ri

iS A

' 81-KA- J7 c/w 81-KA-0378

State v. Shea

they left he immediately called the police and gave them

descriptions of the robbers.

Three Shreveport police officers were having coffee

at a restaurant approximately three blocks from Tuminello's

filling station at the time and they were notified by radio of

the armed robbery shortly thereafter. The report identified

the robbers as two white males, one a blonde cnd the other with

long dark hair, both wearing blue jeans, one with a plaid shirt

and the other with « blue shirt. Leaving the restaurant a

minute or so later, the officers saw two individuals who met

this description walking on the sidewal at a brisk pece. When

they failed to stop on being ordered to do so and ster one

man made @ motion with his hand as if to remove something from

his waist or pocket, the police drew their weapons and apprehended

the two suspects. One of these was the defendant, who had in

his shirt pockets a wad of money and also some checks payable

to Tuminello's business. The other, Justice M. Ratiiff, had

in his possession a revolver with five live shells and one

spent cartridge. The two persons were taken to the pelice

station and subsequently identified by Mr. Tuminello and by Ms.

Dick in a six-man line-up.

Both suspects were advised of their Miranda rights

at the scene when arrested and also at the police station.

At the station Shea told the police he did not want to make any

statements until he saw a lawyer and the interview was terminated

at that point.

The next afternoon, July 3, 1979, just prior to

Shea's transfer to the Cadéo Parish prison, the detectives acai”

approached Shea and asked tim if he warted tc talk about the

case. No inquiry was made as to whether he had hired » lawyer

or if he was indigent. This scecused was again inforwed of the

i A

Miranda rights and again he acknowledged this in writing.

Thereafter, although he refused a recorded interview, Shea

gave a brief oral statement to the detectives admitting that

he and his companion had robbed the service station. He said

that he pulled the gun and demanded money from Mr. Tuminelilo.

The latter gave him money and checks. As he was unable to

carry these and the gun at the same time, he gave the gun to

his accomplice and they fled. Shea also admitted that he was

involved in the other robbery.

This defendant testified at the trial that he had

repeated his desire for a lawyer before making the inculpatory

statement. However when the detectives told him they already

knew everything and that it would be better for him to cooperate,

he told them what happened. The police denied that Shea asked

for counsel or was promised anything on this occasion.

Ratliff subsequently pleaded guilty to both offenses

and was sentenced.

ASSIGNMENT OF ERROR NO. 1 (BOTH CASES)

The defendant first contends that the district court

erred in denying his motion to suppress the inculpatory statement

given on July 3, because it was obtained in violation of his

rights under the 5th and 14th amendments of the United States

Constitution, as set forth by the Supreme Court in Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

In State v. Thucos, 390 So. 2d 1281 (La. 1980) this

court pointed ~wt the necessity for “scrupulous honoring” of

a defendant's asserticn of his right to counsel, saying:

“Before a confession or tory

statement can be admitted in evidence, it

must be established that the accused who

makes the statement dur custodial inter-

rogation was first advi of his Miranda

rights and that the statement was made

freely and voluntarily and not under the

influence of fear, duress, intimidation,

menaces, threats, inducements or promises.

i7 A

Miranda v. Arizona, 384 U.S. 436, 86 &.Ct.

1602, 16 L.Ed. 24 694 (1966); R.S. 15:45.

The Supreme Court in Miranda also steted:

Once warnings have been given, the subse-

quent is clear.... If the indi-

vidual states that he wants an attorney, the

interrogation must cease until an attorney

is present. Al it has been recoc-

nized that an may later change his

ming and waive the same rights which he

earlier asserted, [State v. Manning, 380

354 80 2d 1316 (La.1978)} once a defendant

has invoked his constitutional right to

remain silent or his right to counsel, the

validity of any — waiver depends upon

the ‘scrupulous honoring’ of that right

the police, Michigan v. Mosely, 423 U.S. 96,

96 S.Ct. 321, 46 T. a. 2d 313 (1975); State v.

Manning, supra. The state's burden here is a

one. State v. Mouton, 366 So. 24

1336 (La. 1978); State v. Peevy, 321 So. 24

324 (La.1975). The courts indulge in every

reasonable presumption against the waiver

of fundamental constitutional rights.

Brewer v. Williams, 430 U.S. 387, 97 S.Ct.

1232, 51 T. d. 2d 424 (1977); Glasser v. U.S.,

315 v. S. 60, 62 S. ct. 457, 86 L.Ed. 680

(1942); State v. Manning, supra."

More recently, in Edwards v. Arizona, v. 8.

101 S.Ct. 1880, L.Ed. 20 (1981), the United States

Supreme Court said:

"Second, although we have held that

after initially being advised of his Miranda

rights, the accused may himself validly

waive his rights and respond to interrogation,

see North Carolina v. Butler, supra, 441 U.S.,

at 372-376, 99 8. ct., at 1757-1759, the

Court has strongly indicated that additional

safeguards are necessary when the accused

asks for counsel; and we now hold that when

has Kec his right to ha

presen* during custo -errogation

4 er of that ris 2

iblished by showing on:

OT,

ur? he

. Ur tne!

7

And after mentioning later cases dealing with the “undisputed

right” under Miranda to remain silent and to be free of

interrogation before consulting with a lawyer the court

stated:

“We reconfirm these views and to lend

them substance,

In a concurring opinion Justices Powell and Rehnguist

indicated an uncertainty as to whether this decision really

prohibited the police from initiating an inguiry as to whether

@ suspect has changed his mind about talking to them without

an attorney. However, it seems quite clear to us that the

majority of that court has so ruled.

In the present case it is undisputed that the police

did initiate such an inquiry on July 3, after having been

clearly informed by the defendant on the previous evening that

he would not make any statements without counsel. Consequently,

there was a violation of the additional standard governing police

interrogation of a suspect imposed by Edwards v. Arizona, supra.

The state alternatively contends that if the court

erred in this respect the error was harmless because there is

overwhelming evidence of the defendant's guilt in the record

of the Tuminello robbery case.

In State v. Gibson, 391 So. 24 421 (La. 1980), this

court adopted the harmless error rule applied in Chapman v.

California, 386 U.S. 13, 87 S.Ct. 824, 17 L.Ed. 24 705 (1967),

saying:

2 appears that the Chapman test,

possibility that the evidence complained

of might have contributed to the conviction’

and that ‘the court must be able to declare

@ belief that [the error) was harmless

a reasonable doubt, will assist this

beyond

Court to fulfill both of the requirements

of state law.

19a

From the record it seems quite possible that the

jury could have convicted this defendant of the Tuminello

robbery without consideration of the inculpatory statement

in question. However, for reasons hereinafter set forth

it is unnecessary for us to decide whether or not this error

was harmless beyond a reasonable doubt.

We note that Edwards was rendered on May 18, 1981.

Prior thereto, of course, law enforcement authorities were

unaware of any prohibition against an officer asking a

suspect, who had been warned of his Miranda rights and

refused to give any information without counsel, whether he

had changed his mind and was then willing to be interrogated

without a lawyer. In this case Shea's inculpatory statement

was obtained, his motion to suppress was tried and denied,

he was tried and found guilty by a jury in one case, pled

guilty in the other and he was sentenced for both offenses, all

before the decision in Edwards was announced. Therefore, we

are presented with the question of whether or not the rule of

that case is to be applied retroactively.

The United States Supreme Court does not mention

this subject in its decision. However, it has directed that

Escobedo” and Miranda, both of which introduced new standards

governing police interrogation as safeguards against the use

of unreliable inculpatory statements, are not to be applied

retroactively. Johnson v. State of New Jersey, 384 U.S. 719.

86 S.Ct. 1772, 16 T. Ed. 2d 682 (1966), rehearing denied, 385

U.S. 890, 87 S.Ct. 12, 17 L.Ed.24 121. In Johnson the court

decided that such newly instituted standards did not “enhance

the reliability of the fact-finding process” to the extent

2. Escobedo v. State of Illinois, 378 U.S. 478,

64 S.Ct. 1758, 12 T. 4 977 (1964).

10 A

that inculpatory statements previously obtained without

their application should be excluded from evidence when

the statements were found reliable under the prior tests

of voluntariness. We see no sound reason why this new

standard for police interrogation imposed by Edwards in

regard to obtaining a suspect's statement without counsel

should or will be treated differently.

This court has taken the same position with respect

to retroactive application of the Dino? rule, excluding

statements given by minors without consultation with an

attorney, parent or adult. State v. Collum, 365 80. 20

1272 (La.1978), U.S. cert. den. 444 U.S. 8682, 100 s. ct. 171,

62 L. Kd. 2d 111 (1979); State v. Kent, 391 So.24 429 (La.1981).

In the present case the trial judge determined that

defendant Shea's oral statement was given freely and voluntarily

after he was fully advised of his Miranda rights. We agree

with the court's conclusion that it was admissible under the

standards existing when it was taken and also when the matter

was tried. We also find that the defendant voluntarily and

intelligently waived the right to counsel and his privilege

against self-incrimination before making the inculpatory

statement. As this occurred before the decision in Edwards

was rendered and we are convinced the United States Supreme

Court will pronounce that decision is not retroactive, we so

hold in this case.

This assignment of error lacks merit.

3. State in the Interest of Dino, 359 80. 2d 586

(La.1978), U. 8 cert. den Louisiana Vv. Dino, 439 U. 8. 1047,

99 &.Ct. 722, 56 T. Fd. 2d 706 (1978).

ASSIGNMENT OF ERROR WO. 2 (BOTH CASES)

The defendant contends the trial court erred in

denying his motions to suppress evidence and the confession

obtained as a result of the arrest by the police shortly

after the Tuminello robbery. He argues that the officers

did not have reasonable grounds to make this investigatory

stop and search of the defendants under Terry v. Ohio, 392

U.S. 1, 68 S.Ct. 1868, 20 L.Ed.24 889 (1968), and Article

215.1 of the Louisiana Code of Criminal Procedure.

Article 215.1 authorizes a police officer to stop

person in a public place for questioning when he

reasonably suspects that person is committing, has committed

or is about to commit a criminal offense. Reasonable cause

for an investigatory stop or detention is something less

than probable cause, which much exist for a police officer to

arrest without a warrant for an offense committed outside

his presence. La. C.Cr.P. Art. 213(3). However, the

Getaining officer making such stop must have articulable

knowledge of particular facts sufficient reasonably to

suspect the detained person of criminal activity. Stete v.

Edsall, 385 So. 2d 207 (La. 1980).

Under the circumstances of this case we are convinced

the police officers not only hed reasonable cause for an

investigatory stop but also had probable cause to arrest the

Gefendant and his accomplice without a warrant. These two

persons were in the immediate vicinity of the robbery within

minutes after it occurred. They fitted the descriptions of

the robbers broadcast on the police radio. They were heading

away from the scene of the crime at a brisk peace. Instead

of initially stopping as ordered, both suspects acceleraced

their paces and one of them reached toward his pocket as if

11 4

to produce a weapon. Under somewhat similar facts this

court upheld a stop, search and arrest in State v. Jackson,

337 So. 24 508 (La. 1976). Also see State v. Kenner, 364

So. 24 413 (La. 1980).

This assignment is without merit.

I NO.

This assignment is directed at the denial of defendant's

motion to suppress out-of-court identification. Since it

was neither argued nor briefed by the defendant, it should

be considered as abandoned. State v. Kenner, supra. Nevertheless,

we have reviewed the transcript of the pre-trial hearing of

this motion and conclude that the physical line-up was properly

conducted. It was not suggestive, conducive to a mistaken

identification or tainted in any manner as would violate due

process of law.

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 4 (81-KA-0377)

In this assignment the defense contends that the

trial court erred in denying its challenge for cause of

prospective juror Nathaniel Willis on the grounds that the

voir dire examination disclosed he was not impartial and

would not accept the lew as given by the court. La. C.Cr.P.

Art. 797 (2 and 4).

Initially, while he recognized the presumption of

innocence and the state's burden to prove guilt beyond a

reasonable doubt, the juror indicated that he would expect

the defendant to produce some evidence on his own behalf in

order to find him not guilty. However, upon being furthe:

instructed by the trial judge in this respect and in response

to additional questions, Mr. Willis said thet “it would be

kinda hard“ but he could and would apply the law according to

the court's instructions.

23a

We believe the juror's initial answers in this

instance were brought about more from a lack of understanding

of the law than bias. From our review of the entire voir

dire examination we are convinced of the juror's ability

and willingness to decide the case impartially according

to the law and evidence. We therefore conclude that the

trial judge did not abuse the broad discretion vested in

him in ruling on this challenge for cause. State v. Sheppard,

350 So. 2d 615, 638 (La. 1977); State v. Sonnier, 379 So. 20

1336, 1352 (La. 1980); State v. Bates, 397 So. 2d 1331, 1333

(La. 1981).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5 (81-KA-0377)

This assignment involves the trial court's denial of

defendant's motion for a mistrial on the ground that the

prosecutor made a comment during the voir dire examination

which referred to the possibility that the defendant would

not take the stand and testify in his own defense. La.

C. Cr. P. Art. 770. The remark was contained in the

following question:

“Miss Peters: The fact that the defendant

doesn't have to do anything in his defense,

but if the defendant elects to take the

stand then that would be his right. Would

you, Mrs. Hutchison, could you judge his

credibility like any other witness?"

A similar argument was made in State v. Kenner, 336

So. 2d 624, 828 (La. 1976). It was rejected because of the

defendant's failure to object or move for a mistrial at the

time. However, this court went on to say:

»In any event, the remarks were not a comment

on the failure of defendant to take the

stand, but only a statement that defendant

might or might not present evidence. It has

been held by this court that a prosecutor's

statement that ‘the evidence... was

-10-

2A

uncontradicted and uncontroverted' was not

an impermissible comment on the accused's

failure to take the stand. State v.

Singleton, 321 80. 2d 509 (La.1975). Hence,

we not find that the prosecutor's —

adversely affected defendant's due process

rights in any way.°

We reach the same conclusion in this instance. We

do not consider the portion of the question objected to as

a comment on the failure of the defendant to take the stand.

Instead, the prosecutor merely mentioned the defendant's

constitutional privilege not to do so and then directed a

legitimate inquiry toward the weight to be accorded his

statements if he should choose to testify.

This assignment is without substance.

ASSIGNMENT OF ERROR NO. 6 (81-KA-0377)

The defendant argues that the trial court erred in

curtailing cross-examination of Detective John Snell, thereby

denying him the opportunity to attack the credibility of this

state witness by showing his bias.

The defendant's counsel attempted to ask the detective

if taking statements helps the state in getting convictions.

The state objected on the ground that the question called

for an opinion or a conclusion and it was sustained. We

agree with the trial court's ruling that the question called

for an impermissible impression or opinion of a witness not

shown to have special knowledge in that field. La. R.S.

15:463 and 464. Furthermore, we are unable to see how the

defendant could have been prejudiced or harmed by such ruling.

This assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 7, 8 AND 9 (81~-KA-0377)

Since these assignments of error were neither argued

nor briefed by the defendant, they will be considered abandoned.

State v. Kenner, supra.

25 A

—

ASSIGNMENT OF ERROR WO. 10 (81-KA-0277)

& ASSIGNMENT OF ERROR NO. 4 (81-KA-0378)

Lastly, defendant Shea contends that his sentences

are excessive. His principal complaint seems to be directed

at the disparity between his consecutive sentences of 17 and

five years and those of his accomplice Ratliff of two concurrent

seven and one-half years sentences imposed pursuant to guilty

pleas for the same robberies. Such comparison alone is not

sufficient to establish an unconstitutional excessive sentence.

State v. Bonanno, 373 So. 2d 1284, 1294 (La. 1979).

Ratliff's background is not in the record before us.

BKowever, we note that at the time of these offenses Shea was

on probation for a felony theft convicted in Texas. He was

the one who held the revolver and discharged it in the

proximity of the victim Tuminello.

Before the 17 year sentence was imposed the trial

judge ordered a pre-sentence investigation and permitted

the defense to review the report. A pre-sentence hearing was

held, after which the judge stated for the record in detail

the considerations which he took into account and the factual

bases for imposing sentence under the guidelines of La.

C.Cr.P. Art. 894.1.

Under the circumstances and as armed robbery is one

of the most serious crimes in Louisiana, for which the

Legislature has provided a minimum sentence of five years

and a maximum of 99 years, without benefit of parole, probation

or suspension of sentence, it is quite clear to us that the

trial judge did not abuse his wide discretion in sentencing

this defendant to serve 17 years at hard labor for the Tuminello

robbery.

The defendant also contends that the five year

sentence imposed in the other case is excessive inasmuch as

-12-

0

the trial judge ordered that it be served consecutive to his

17 year sentence. He argues that the second sentence should

have been made to run concurrently under La. C. cr. P. Art. 883,

because the two offenses constituted parts of a common scheme SUPAENS COURT OF LOUISIANA

or plan. We disagree. These two robberies occurred four days

apart and were separate crimes. But even if they were

considered a single course of criminal conduct, Article 683 as 9

is not phrased in mandatory terms. More important, the five

year sentence in the Quick Mart robbery case was imposed — oe,

pursuant to a plea bargain to which the defendant, the district

attorney and the judge had agreed. Consequently, he is KEVIN SHEA

precluded from complaining of excessiveness of that sentence

before this court. State v. Curry, 400 So. 24 614 (La. 1981). 0 X CALOGERO, Justice, concurring.

Also, it appears that the only condition to the defendant's 7 The majority finds that Edwards v. Arizona

guilty ples was the reservation of his rights to appellate — U.S. . 101 S.Ct. 1880 (1981), prohibits the police from

review of the trial court’s ruling on his motion to suppress. initiating an inquiry as to whether a suspect, who earlier

These assignments of error therefore lack merit. chose not to talk without an attorney, had changed his mind. 1

For the foregoing reasons, the convictions and sentences am not convinced that Edwards v. Arizona stands for that

are affirmed. proposition. Edwards probably should be construed more

AFFIRMED. narrowly than that in my opinion.

The majority determines that Edwards v. Arizona

should be applied only prospectively. I am not convinced that

this is correct. In my mind the Edwards opinion may well

enhance the truth finding process, as opposed to simply

creating a prophylactic deterrence of police activity.

For the reason first above stated I concur in the

majority's affircmance of defendant's conviction and find in

this case no need to decide the retroactive/prospective

-l3-

17 A 28 A

ee - ‘ * „* 5

quest ion. Defendant's statement of July 3, 1979, was not

improperly admitted in evidence. Defendant neither asked for

counsel nor “expressed his desire to deal with police only

through counsel.” Edwards v. Arizona, supra. An informed

accused may waive his rights to silence and to counsel and

respond to interrogation. Worth Carolina v. Butler, 441 U.S.

372, 376, 99 &.Ct. 1757, 1759 (1979).

Th. . case is different from our recent State v.

West, . So.2d (. 1982), No. 61-KA-0675, where defendant

hac been advised by his attorney to make no statement to

police, the police officers were fully aware of that fact, and

they tows a statement from him nonetheless.

29 A

* )

SECTION

STATE OF LOUISIANA NUMBER °11,694 BP

VERSUS FIRSY LUPICIAL DISTRICT COURT

KEVIN MICHAEL SHEA CADDO PARISK, LOUISIANA

ASS LIMENTS OF ERROR

Kevin Michael Shee, defendant herein, assign* es error for

purposes of appeai to tae Leowisiera Supreme Court ife [cilowing

actions of the trie co, to-wit:

1.

The trial coert erred in denying the defendant's Motion

to Suppress Inculpatory Stetem nts.

2.

The trial cowrt erred in denying te defendant's Motion

to Suppress Evidence.

3.

The trial ort erred in oenying the defendant's Motion

to Suppress Out-of-Court Identification.

4.

The tri court erred in denying the defendant's challenge

for cause of prospe™.ve juror, Nathaniel Willis.

5.

The trial court erred in failing to grant the defendant's

motion for mistrial and/or to empanel a new jury venire during the

State's voir dire examination.

6.

The trial court erred in curtailing cross-examination of

Detective John Snell.

we

The trial court erred in admitting into evidence 8—1 and

S 19.

8.

The trial court erred in admitting into evidence S-14

and S-15.

9.

The trial court erred in admitting into evidence 8-9,

S-10 and S-20.

10.

The trial court erred in imposing an excessive sentence

in violation of Article I, Section 20 of the 1974 Louisiana

Constitution.

INDIGENT DEFENDER OFFICE

311 Slattery Building

Shreveport, Louisiana 71101

See Indigent Defender

CERTIFICATE

1 HEREBY CERTIFY that a copy of the foregoing Assignments

of Error has been forwarded to Sonia D. Peters, Assistant District

Attorney, 501 Caddo Parish Courthouse, Shreveport, Louisiana, this

date.

Va Indigent Defender

FILED '

JAN 14 SECTION

STATE OF LOUISIANA — NUMBER 111,684

Deputy Clerk

VERSUS FIRST JUDICIAL DISTRICT COURT

KEVIN MICHACL SHEA CADDO PARISH, LOUISIANA

ASSIGNMENTS OF ERROR

Kevin Michael Shea, defendant herein, assigns as error for

purposes of appeal to the Louisiana Supreme Court the following

actions of the trial court, to-wit:

1.

The trial court erred in denying the defendant's Motion

te Suppress Inculpatory Statements.

2.

The trial court erred in denying the defendant's Motion

to Suppress Evidence.

3.

The trial court erred in denying the defendant's Motion

to Suppress Out-of-Court Identification.

4.

The trial court erred in imposing an excessive sentence

in violation of Article 1, Section 20 of the 1974 Louisiana

Constitution.

INDIGENT DEFENDER OFFICE

311 Slattery Building

Shreveport, Louisiana 71101

facet Indigent vefender

CERTIFICATE

Il HEREBY CERTIFY thet a copy of the foregoing Assignments

of Error has been forwarded to Sonia D. Peters, Assistant District

Attorney, 501 Caddo Parish Courthouse, Shreveport, Louisiana, this

date.

Nee Indigent Defender