STATE v. GARNER No. 92-KA-1937.
621 So.2d 1203 (1993)
STATE of Louisiana v. Steven GARNER and Glenn Garner and Harold Lyons.
Court of Appeal of Louisiana, Fourth Circuit.
July 15, 1993.
Harry F. Connick, Dist. Atty. of Orleans Parish, Jack Peebles, Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff/appellee.
George A. Guidry, New Orleans, for defendant/appellant.
Before KLEES, BYRNES and WALTZER, JJ.
On December 27, 1990, defendants Steven Garner and Glenn Garner and a co-defendant, Harold Lyons, were each charged by grand jury indictment with second degree murder of Tommy Gilmore.
Taunya Joshua testified that in the early morning hours of November 6, 1990, she and her boyfriend, the victim Tommy Gilmore, were at a bar. Elton "Plum" Clayton slapped Lynn Smith, girlfriend of Steven Garner, on the behind. The victim, Tommy Gilmore, then punched Glenn Garner. Glenn Garner, Steven Garner and Harold Lyons then left the bar. Twenty minutes later, Joshua saw the three men circling the block. Glenn Garner drove while Steven Garner and Harold Lyons sat in the passenger seat and back seat, respectively.
Dr. William Newman, an expert anatomic pathologist, performed the autopsy. He said the victim suffered a gunshot wound to the left hand, and to the right thigh, two gunshot wounds to the chest and a gunshot wound to the ear. Either one of the wounds to the chest or the wound to the head was fatal. The bullet recovered from the chest was a smaller caliber than the bullet removed from the skull.
Sergeant Bruce Harrison obtained a search warrant for the Garner residence. They discovered two weapons in a garbage bag in the backyard of the residence. He said he took Joshua's statement and that she believed the Garner brothers had shot the victim.
Lynn Smith testified that when Clayton tried to touch her, Steve Garner told him to leave her alone. Clayton went outside and summoned Gilmore, a man named Dion, and a man named June. All of them came back in the bar and stood around Steve Garner. The men went outside the bar. Smith followed and saw Glenn Garner fist fighting with the victim. The Garner brothers and Harold Lyons then left. Later, she saw the three pass the bar in a car. Still later, she, Steve Garner, and Harold Lyons were standing outside the bar. She saw Gilmore come out of the bar and attempt to run. She saw Harold Lyons shoot Gilmore. On cross, she said Gilmore and Clayton were members of a gang called the "Tuesday Crew" known for carrying guns and committing acts of violence. She said she did not know if they had guns on the night of the crime.
Detective Dwight Deal testified he and Detective Melvin Winnins drove Smith to the Garner residence so they could get an accurate description. As they approached the house, Smith pointed out the Garner brothers who were standing outside. The men ran into the house upon seeing the police car. The officers called for a back-up. They knocked on the door and the Garners' father answered. The officers then arrested the two men. Elmo Garner, another brother, was also taken to the homicide office, but he was not arrested because the officers learned he was not present at the shooting. Elmo Garner told the officers the guns were at the house. Harold Lyons was also present at the house, but the officers did not arrest him because they did not know at the time he had been involved in the crime.
John Treadway, a firearms expert with NOPD, testified he examined four bullets. Three of the bullets were discovered in the autopsy and one was discovered at the scene. Treadway stated two of the bullets from the autopsy were fired from one gun recovered from the Garner residence. The third bullet from the autopsy and a bullet from the scene were fired from the second gun recovered.
Barbaroso Welch, legal assistant to the firm representing the Garner brothers, testified Smith told him that Clayton and Dion removed the jewelry and pocket contents from the victim and that Dion picked up a revolver and threw it into a vacant lot.
The defense then called Lynn Smith who testified she saw the victim with a gun after the fist fight.
Steven Garner testified Clayton approached Smith while they were in the bar. Garner told him to leave. He left and returned with friends including Dion and the victim. The men went outside. Clayton hit Glenn Garner in the face with a weapon. Then Glenn and Steven Garner and Lyons left in a car. Steven Garner admitted they were armed. After going to another bar, the men were returning home when they passed the first bar. Steven Garner saw Smith, and they stopped to talk to her. Glenn went inside to get a beer. When he came back out, Gilmore followed him. Steven realized Gilmore had a gun and he called out to Glenn. Gilmore fired. Steven fired, and Glenn fired. On cross examination, Steven Garner denied circling the block. He said Lyons did not have a
The defendant argues that trial court erred in denying his motion to suppress the guns. The defense argues that Elmo Garner was under arrest when he told the officers where the guns were located, that he had not been informed of his Miranda rights, and that, as a result, his statement should have been suppressed.
At the motion hearing, Elmo Garner testified that when the officers arrived at his house in the early morning hours of November 6, 1990, they handcuffed him and took him to the homicide office. He said he was not placed under arrest, but was threatened that if he did not tell where the guns were located, he would be incarcerated.
Officer Bruce Harrison testified Elmo Garner was originally a suspect and was under investigation at the time he was brought to the homicide office. He said Elmo Garner was never under arrest and that accordingly he was not advised of his Miranda rights. He said he was not threatened and that no promises were made. He said when he made the statement, he was no longer under investigation and was free to leave.
In explication of the basic rights to the assistance of counsel and the freedom from self-incrimination, the Supreme Court in Miranda v. Arizona,
No less is required by Article I, § 13 of the 1974 Louisiana Constitution. By providing that a person "arrested or detained in connection with the investigation" of an offense must be fully advised of his rights, the framers intended to require that investigating officers give the warnings anytime such a citizen was deprived of his liberty in a significant way or was not free to go as he pleased. State in Interest of Dino,
In Menne, the defendant was questioned by the police and denied any complicity in a murder. Later, he became an object of sharpened interest to the investigating officers when they learned that at one time he had owned the murder weapon. An officer telephoned him and asked him to come to the police station for questioning. He agreed and was taken to the station house by a police squad car. He was taken to an interrogation room. He was not advised of his constitutional rights, and he was never informed that he was not under arrest or that he was not obliged to remain or to submit to questioning. The defendant confessed to the killing. The Louisiana Supreme Court found, viewing the evidence objectively, from the standpoint of a reasonable interrogee, that the defendant was deprived of his freedom of action in a significant way. The court reached this result even though the defendant had not been physically restrained or told he was under arrest. The Court distinguished Oregon v. Mathiason,
In State v. Raheem,
In this case, Elmo Garner was handcuffed, placed in a patrol car, and taken to the homicide office for investigation. By the officers' own admission, he was under investigation for the crimes. Although the officers later determined, allegedly before the statement was taken, that he was no longer under investigation, there is no evidence that this fact was conveyed to him. There is no evidence the officers ever told him he was not under arrest or that he was free to go. Although Elmo Garner testified he was not formally placed under arrest, it does not appear, viewing the evidence objectively, from the standpoint of a reasonable interrogee, that Elmo Garner believed he was free to leave the homicide office. Accordingly, since he was not advised of his Miranda rights, the confession appears to have been illegally obtained and the statements should have been suppressed. State v. Evans,
This provision expands the scope of protection afforded Louisiana citizens by granting standing to contest the illegality of a search or seizure to "any person adversely affected." Under Louisiana jurisprudence, any defendant against whom evidence is acquired as a result of an allegedly unreasonable search and seizure, whether or not it was obtained in violation of his rights, has standing to challenge the constitutionality of the search or seizure. State v. Gibson,
There are three exceptions to Wong Sun's exclusionary rule. State v. Butler,
The inevitable discovery doctrine, however may be applicable. In Nix v. Williams,
This court has applied the inevitable discovery exception on several occasions. In State v. Clark,
In applying the inevitable discovery exception, we rely on the following facts. The officers testified they went to the residence to verify the address and to obtain a description of the property. Therefore, it is assumable that they intended to obtain a search warrant for the residence, not merely an arrest warrant for the defendants. The defendants were found outside their house only a matter of hours after the crime was committed. Since they did not have a long time to plan disposal of the guns, the guns were likely to be found in the residence. Thus, the officers would have obtained a search warrant for the house without the statement of Elmo Garner and would have found the guns in the backyard since the gun protruded from the bag in which they were contained and were in the officers' plain view.
The defendants argue the initials on Elmo Garner's statement were not his and that therefore the search warrant was not valid. At the motion hearing, Elmo Garner testified that the initials on the first two pages of the statement were not his. However, he admitted signing the statement and that he did in fact make the statement. Thus, there is no evidence to the contrary that the statement was not that of Elmo Garner and this assignment is without merit.
The defendants argue they should have been allowed to recall an unnamed witness at the motion hearing. They argue the rule of sequestration had not been invoked, and, therefore, they should have been allowed to recall a witness who, after testifying, had remained in the courtroom.
The defendants do not identify the witness. They make no proffer of what the testimony would have been. They do not show how they were prejudiced. Accordingly, this assignment is without merit.
The defendants claim the trial court erred by not requiring the State to furnish them with a copy of the victim's prior conviction record or requiring the State to ascertain if the victim had a prior conviction record. Question # 6 of defendants' Bill of Particulars asked, "Was the alleged victim ever convicted of a crime or offenses?" Question # 7 asks "If the answer to number six (6) is affirmative, please list all convictions." The State's reply to # 6 was "Not known by State at this time." The State's reply to # 7 was "Not applicable." The court ruled at the hearing on discovery that the State's answers were good and sufficient.
The defendants apparently argue that they were denied Brady material in that if the victim had a record and thus a history of violence, this evidence would have supported their claim of self-defense. However, the defendants put forth no evidence that the victim had a record or that the State was in possession of the evidence and refused to reveal it. Thus the defendants failed to support their argument and this assignment is without merit.
The defendants argue the trial court erred in its instructions to the jury
The defendants argue the State failed to present sufficient evidence to support the conviction. The standard for deciding whether a jury's decision is reasonable is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia,
La.R.S. 14:30.1 defines second degree murder, in pertinent part:
Defendant Steven Garner admitted that he and his brother Glenn fired at the victim. The victim died of two fatal wounds. One of each of the bullets was fired from one of each of the guns found in the defendants' backyard. Although Steven Garner testified they fired in self-defense, other witnesses testified the victim did not have a gun. No gun was found on his body or in the vicinity. The credibility of the witnesses is an issue for the trier of fact. State v. Cashen,
For the reasons discussed, the convictions and sentences are affirmed.
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