
    STATE of Louisiana v. Ronald REEVES.
    No. Cr96-1186.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 1997.
    
      Robert Richard Bryant, Jr., Lake Charles, Cynthia Skerrett Killingsworth, Baton Rouge, Susan K. Roche, Lake Charles, for State.
    Ronald F. Ware, Lake Charles, for Ronald Reeves.
    Before THIBODEAUX, PETERS and SULLIVAN, JJ.
   JiSULLIVAN, Judge.

Defendant, Ronald Reeves, was convicted of second degree murder, a violation of La. R.S. 14:30.1, and sentenced to life imprisonment at hard labor. He appeals, arguing that (1) the trial court erred in not suppressing a confession and statements that he made while in police custody and (2) the jury’s verdict is contrary to the law and evidence.

Facts

On November 2, 1994, a caretaker found the body of Arnold Keith Davis, a thirty-five year old black male, in the LeBleu Cemetery near Iowa, Louisiana. Davis had been shot once in the back of the head.

On November 3,1994, three of defendant’s friends, John White, Carl Tucker, and Joseph Smith, presented the Calcasieu Parish Violent Crimes Task Force with a .40 caliber semi-automatic handgun and told detectives that defendant confessed to | 2shooting someone in the cemetery. Additionally, White had seen defendant with a black male on the evening of November 1,1994.

The police also questioned Davis’ friend, Donna Easton, who saw defendant and Davis together in the early morning hours of November 2, 1994 at the convenience store where she worked. Easton knew that Davis was a homosexual, and she assumed that Davis and defendant were lovers.

On November 4, 1994, Detective Donald DeLouche, director of the Violent Crimes Task Force, arrested defendant at a trailer where he had been staying. At the trailer, defendant signed a waiver of rights form as well as a form permitting the police to search the residence. Defendant did not make any statements, nor did he request an attorney, en route to the Task Force headquarters.

At the Task Force office, Detective Denise Hughes, the lead investigator on the case, reviewed a rights form with defendant. Although defendant signed the form, he requested an attorney as Detective Hughes explained the waiver section of the form to him. Detective Hughes concluded the interview and handed the form to Detective De-Louche, who wrote that defendant requested an attorney at 1:53 p.m.

Detective Hughes then told defendant he would not have another “opportunity” or “chance” “to tell us his side of the story.” She also gave him a copy of the arrest warrant and the affidavit of probable cause, although she did not know that the affidavit was attached to the warrant. After reading these papers, defendant said, “Wait a minute, I didn’t shoot anybody in the back of the head. I want to tell y’all what happened.” Hughes reminded defendant that she could no longer discuss the case because he requested an attorney. Defendant replied that he had changed his mind. Detective De-Louche noted on the form that at 1:54 p.m. defendant agreed to speak with them.

13At 2:09 p.m., the detectives began videotaping defendant’s statement. Defendant initially claimed that he shot Davis in self defense when Davis attempted to rob him at knife point. After further questioning, defendant said that he shot Davis because Davis had been making unwelcome sexual advances to him all evening.

Deputy Harold Brady booked defendant into the Calcasieu Parish jail that evening. Deputy Brady later testified that the following exchange occurred as he fingerprinted defendant:

[H]e was just coming in the jail and I asked him why he came in, why he was here. And then he stated if I remember right, that he had killed somebody. And I said, “You killed somebody?” He said, “Yeah, I killed him.” I said, ‘Well why did you kill him?” He said, “Because he’s a faggot and I don’t like faggots.” And I said, “You killed one faggot to come into a jail where they have literally hundreds of 'em?” And he didn’t say anything. And then he said, ‘Well, if he wouldn’t of messed with me, I think at my sister’s grave, or my mother’s grave, that I wouldn’t have killed him.”

Deputy Michael Soileau and Deputy Kenneth Higginbotham, who were also working at the jail that evening, overheard defendant state, “I killed the guy because he was a faggot” and “he kept messing with me.”

The next day, defendant requested to speak to a detective. Detectives Hughes and DeLouche met defendant at the correctional center where they again advised him of his rights. Defendant then told them that he was sorry, that he didn’t mean to do it, but that he had shot the man because he was scared.

Defendant was initially charged with first degree murder, but the grand jury returned a true bill for only second degree murder. Prior to trial, the trial court denied defendant’s motion to suppress his videotaped confession, the statements made to Officer Brady, and the subsequent statements to Detectives Hughes and DeLouche. The trial court found that Detectives DeLouche and Hughes concluded the interview when defendant requested an attorney and that Detective Hughes further reminded |4defendant that she could no longer discuss the case with him, when defendant indicated that he wished to speak with them. The trial court did not consider Hughes’ remarks to be interrogation, nor did the court find error in her handing defendant a copy of the arrest warrant and affidavit. The trial court concluded that defendant reinitiated contact with the officers after he decided to give a free and voluntary statement.

Assignment of Error No. 1

In this assignment, defendant argues the trial court erred in denying his motion to suppress the statements and confession made to the Violent Crimes Task Force. He argues that Detective Hughes’ conduct of stating that this was his only opportunity to tell them his side of the story, combined with handing him the affidavit and arrest warrant, constituted impermissible interrogation after he invoked his right to counsel.

To protect the privilege against self-in-erimination, the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once an accused has expressed his desire to deal with law enforcement officials 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, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981).

“When an accused invokes his Miranda right to counsel, the admissibility of a subsequent confession or incriminating statement is determined by a two-step inquiry: (1) did the accused initiate further conversation or communication; and (2) was the purported waiver of counsel knowing and intelligent under the totality of the circumstances.” State v. Koon, 96-1208, p. 7 (La.5/20/97); — So.2d -, - [1997 WL 261370], With guidance from Koon, we frame the issue in this case as follows: did the |5detectives continue to interrogate defendant such that his further statements cannot be deemed an initiation of further conversation “because the interrogation never ended.” Id. at p. 8; — So.2d at-.

In Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980), the Court extended the Miranda safeguards to the “functional equivalent” of interrogation, which the Court defined 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.”

Nonetheless, the Court in Innis concluded that the police did not “interrogate” the defendant. In Innis, two police officers commented about their concern that handicapped children might injure themselves if, by chance, they found a missing murder weapon. This musing between the officers prompted the defendant, who had previously requested counsel, to reveal the location of the weapon. The Court found this conduct was not the “functional equivalent” of interrogation because the officers’ “off-hand remarks” were not express questions directed to the defendant and the officers had no reason to suspect that the defendant was susceptible to an appeal concerning the safety of handicapped children.

Since deciding Innis, the Court has rarely visited the question of what conduct amounts to “interrogation.” See Lewis v. Florida, 486 U.S. 1036, 108 S.Ct. 2025, 100 L.Ed.2d 612 (1988) (Mr. Justice White dissenting from denial of certiorari). However, Arizona v. Mauro, 481 U.S. 520, 529-30, 107 S.Ct. 1931, 1937, 95 L.Ed.2d 458 (1987), offers the following guidance: “In deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.”

^In Mauro, the Court again found no Miranda violation. The court held that the police's conduct in allowing the defendant to speak with his wife, and openly taping the conversation, did not amount to interrogation because the defendant was not subjected to “compelling influences, psychological ploys, or direct questioning.” Id. at 529, 107 S.Ct. at 1937.

Consistent with Mauro, the United States Court of Appeals for the Fifth Circuit has “rejected an interpretation of Edwards’ prophylactic rule that is divorced from the context of badgering police conduct from which that rule sprang.” Plazinich v. Lynaugh, 843 F.2d 836, 838-39 (5th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 841, 102 L.Ed.2d 973 (1989) (emphasis added). In that case, the defendant first requested counsel but then confessed to murder shortly after the police informed him that his aecom-phce/girlfriend had attempted suicide because she feared that she alone would be blamed for the crime. The court found no violation, noting that the remark was not inquisitorial and that the officer had no reason to expect an immediate response. “It is difficult to conceive, however, that one informational comment made to a defendant can be so ‘overreaching’ as to violate the spirit of Edwards.” Id. at 839.

The “overreaching” in Edwards, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, occurred when the police visited the defendant in jail and insisted he “had to” talk to them, even though he had previously requested an attorney and he did not want to discuss his case at that time. In State v. Abadie, 612 So.2d 1 (La.1993), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993), the Supreme Court of Louisiana found a similar violation, where police repeatedly requested that the defendant submit to a polygraph examination after he had made several unsuccessful attempts to obtain counsel. More recently, in Koon, — So.2d-, the court found error where the police repeatedly questioned the defendant about his Miranda rights to “keep him talking.” Id. at p. 9, — So.2d-. See also instate v. Lee, 524 So.2d 1176, 1182 (La.1987), the police confronted the defendant with a picture of the victim and asked him “why would he shoot this young boy.” The court found the police's conduct clearly amounted to interrogation because the remarks were not “off-hand,” but directly linked to the crime, and the defendant was subject to express questioning.

For the following reasons, we do not find similar overreaching in this case. The record clearly supports the trial court’s finding that the detectives ceased questioning defendant when he requested counsel. When defendant began speaking again, Detective Hughes reminded him that she could no longer discuss the case with him. Her comment that this was the “last opportunity” that defendant would have to “tell us” his story does not imply, as in Edwards, that defendant “had to” talk or that defendant would not be permitted to speak with someone else.

Nor can we find error in Detective Hughes’ giving defendant a copy of the warrant for his arrest and the supporting affidavit. Detective Hughes testified that she gave defendant these documents to inform him that he was being charged with first degree murder and that she did not know the affidavit was attached to the warrant. Detective Hughes had no way of knowing that defendant would blurt out “I didn’t shoot anybody in the back of the head,” when the evidence gathered irrefutably established that the victim died from a gunshot wound to the back of the head.

In United States v. Payne, 954 F.2d 199 (4th Cir.1992), cert. denied, 503 U.S. 988, 112 S.Ct. 1680, 118 L.Ed.2d 396 (1992), the defendant made incriminating statements in response to an agent’s description of certain inculpatory evidence. The court observed, “Although the supreme court has not directly addressed this question, there are indications that mere declaratory descriptions of incriminating evidence do not invariably constitute interrogation for Miranda purposes.” Id. at 202. Rather than |8characterizing this conduct as “overreaching,” the court opined that information about the evidence against a suspect may “contribute to the intelligent exercise of his judgment regarding what course of conduct to follow.” Id. See also Enoch v. Gramley, 70 F.3d 1490, 1500 (7th Cir.1995), cert. denied, — U.S. -, 117 S.Ct. 95, 136 L.Ed.2d 50 (1996), where the court stated, “Briefly reciting to a suspect in custody the basis for holding him, without more, cannot be the functional equivalent of interrogation.”

Detective Hughes’ conduct in handing defendant the warrant and affidavit served only to inform defendant of the crime for which he was charged and gave defendant a brief description of the evidence against him. Under the above jurisprudence, this conduct cannot be considered “interrogation.” Neither Detective Hughes nor Detective DeLouche engaged in “police badgering, overreaching or subtle but repeated efforts to wear down an accused’s resistance and make him change his mind.” Koon, p. 7; — So.2d at-.

Defendant had twice been advised of his rights. Unlike the officers in Koon, Detectives DeLouche and Hughes stopped all questioning when defendant requested an attorney. After defendant said, “I want to tell y’all what happened,” Detective Hughes reminded him that she could no longer discuss the ease with him because he asked for a lawyer. Defendant’s outburst was prompted by a written description of the victim’s fatal wound. The detectives could not have foreseen that this information — which they knew to be accurate — would prompt defendant to exclaim that the victim had not been shot in the back of the head. For these reasons, we agree with the trial court that defendant’s confession and subsequent statements were made freely and voluntarily after a knowing and intelligent waiver of his rights.

19Assignment of Error No. 2

In this assignment of error, defendant contends the verdict is contrary to the law and evidence.

To obtain a conviction, the State must prove the elements of the crime charged beyond a reasonable doubt. Defendant was convicted of second degree murder, which is defined as the lulling of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A)(1). In this assignment, defendant contends that substantial evidence admitted at trial should have reduced his criminal culpability for Davis’ death to manslaughter. La.R.S. 14:31(A)(1) defines manslaughter as:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

In State v. Jack, 596 So.2d 323, 327 (La. App. 3 Cir.), writ denied, 600 So.2d 611 (La.1992), this court stated:

Once the jury finds the elements of second-degree murder then it has to determine whether the circumstances indicate that the crime was actually manslaughter. State v. Maddox, 522 So.2d 579 (La.App. 1 Cir.1988).
The standard on review is, viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Lombard, 486 So.2d 106 (La.1986).

Defendant contends he shot Davis because Davis made unwanted homosexual advances toward him and touched various parts of his body. He argues that Davis’ conduct was sufficient provocation to deprive him of his self-control and cool | ^reflection. Thus, he contends this court should reduce his conviction from second degree murder to manslaughter.

Donna Easton had known Davis for ten to twelve years and was aware that he was a homosexual. She was working at a convenience store when defendant and Davis came in around 4:00 a.m. on November 2,1994, the date of the crime. According to Easton, while defendant and Davis were drinking beer outside the store, Davis rubbed defendant’s hand in an affectionate manner. She assumed from this gesture that Davis and defendant were lovers. She further testified defendant did not pull his hand away in order to avoid the gesture.

John White had known defendant for several years. He testified that he sent defendant to the store to purchase a condom on November 1, 1994, the evening before the crime. Because defendant was gone for a long time, White decided to purchase the condom himself. When he returned, he saw defendant with a black man in a white ear in the parking lot of his apartment building. Defendant told him the man was a friend and that they were going to buy some beer and get drunk. The following day, defendant told him he had shot someone at the LeBleu Cemetery in self-defense because the man had attempted to attack him with a knife.

Joseph Smith, defendant’s stepbrother, testified that defendant told him he shot Davis in self-defense because Davis tried to stab him and threatened him with a gun.

The defense called David Prince, a forensic serologist, as its only witness. Prince testified that he examined the body of the victim and discovered seminal acid phosphatase in the victim’s rectum. In his professional opinion, this substance could not have come from defendant because the specimen contained “0” type blood group substances and defendant had type “A” blood.

| nAfter reviewing the trial transcript, we do not find proof of provocation sufficient to reduce defendant’s conviction from second degree murder to manslaughter. Although some evidence supports the conclusion that Davis was a homosexual and may have had designs on defendant, there is scant evidence to support a determination that homosexual advances by Davis provoked defendant to shoot him. Defendant’s conflicting accounts of why he shot the victim make it difficult to determine his true motivation for the act. This assignment of error lacks merit.

Decree

For the above reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

THIBODEAUX, J., dissents and assigns reasons.

| iTHIBODEAUX, Judge,

dissenting.

I dissent from the majority’s affirmance of the trial court’s refusal to suppress the defendant’s confession and inculpatory statements.

Under the bright line rule established in Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981), a suspect who has “expressed his desire to deal with the police only through counsel, ... [cannot be] subjected] to further interrogation by the authorities until counsel has been made available to him” unless he himself reinitiates contact with the police. State v. Tart, 93-0772 (La.2/9/96); 672 So.2d 116, 128. A defendant’s right to termination of questioning must be “scrupulously honored” once he invokes his privilege against self-incrimination. State v. Koon, 96-1208 (La.5/20/97); - So.2d - [1997 WL 261370]. In this case, it was not.

Citing State v. Ross, 572 So.2d 238 (La. App. 1 Cir.1990), this court noted in State v. Fisher, 626 So.2d 548, 550 (La.App. 3 Cir. 1993):

The statements of an accused, whether exculpatory or inculpatory, when made during a custodial interrogation, should be suppressed unless the accused is first advised of, and subsequently waives, his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), U.S. Const. Amend. V, VI, La. Const. art. I, Section 13. When an accused asserts his right to counsel, the police must scrupulously hon- or the invocation of the right and interrogation must cease. State v. Harper, 430 So.2d 627, 633 (La.1983); State v. Campbell, 461 So.2d 644, 648 (La.App. 1 Cir. 1984), writ denied, 466 So.2d 1299 (La.1985).
An accused, having expressed his desire to deal 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. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Arceneaux, 425 So.2d 740, 744 (La.1983); State v. Campbell, 461 So.2d at 648. Furthermore, even when the accused initiates further communication, exchanges, or conversation with the police, and reinterrogation follows, the prosecution still has the burden of showing that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405(1983); State v. Carr, 530 So.2d 579, 587 (La.App. 1 Cir.), writ denied, 533 So.2d 354 (La.1988), cert denied, 489 U.S. 1098, 109 S.Ct. 1573, 103 L.Ed.2d 939 (1989).

When the accused initiates the exchange with the police, the state must prove that the defendant’s waiver of his right to silence and right to counsel was knowing and intelligent “under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue.” This determination depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405; See also, State v. Tart, 672 So.2d 116.

Donald DeLouehe, Director of the Lake Charles Violent Crimes Task Force, testified he supervised the investigation of the murder of Arnold Keith Davis. He and the other investigators identified the defendant as a suspect, and obtained a | ^warrant for his arrest. They arrived at the defendant’s trader, placed him under arrest, and informed him of his rights. While at the trailer, the defendant agreed to answer questions and did not request an attorney. He also signed a waiver of rights form and signed a form indicating he had voluntarily permitted the police to search his trailer. The defendant did not make any statements as he was transported to the Office of the Violent Crimes Task Force. While at that office, Sergeant Denise Hughes reviewed a rights form with the defendant which he signed. She also reviewed the waiver of rights form with the defendant and, at that point, the defendant indicated he wanted to talk to an attorney. Sergeant Hughes concluded the interview, but told the defendant this would be the only chance he would have to tell his story. Sergeant Hughes then gave the defendant a copy of the arrest warrant. Reeves then said, “[W]ait a minute, I didn’t shoot anybody in the back of the head. I want to tell ya’ll what happened.” DeLouehe testified further:

And she said, wait a minute, do you want to talk to us or not? And he said, basically, yes, I want to talk to you. And so at that time I made those — I was signing the form. She had handed me the form to sign, and so I flipped the form over and it says, 1:53 P.M., says he wants to talk to an attorney; Denise ends interview and tells him this was his only chance to tell his story. And then 1:54 P.M. he says he changed his mind and wants to talk. I made those notes on the back of the form.

DeLouehe stated that the Reeves’ confession was videotaped. He was advised of his rights again on the videotape and he acknowledged that he understood his rights. After making the taped statement, Reeves was transported back to the Calcasieu Parish Jail where he was booked. DeLouehe testified that Reeves called the Violent Crimes Task Force the next day and asked them to come to the jail and talk to him again. De-Louehe and Hughes complied. Reeves was again advised of his rights and signed another waiver of rights form.

pSergeant Hughes, a detective with the Lake Charles Police Department assigned to the Violent Crimes Task Force, was the lead investigator in this case. She gave Reeves a copy of the warrant for his arrest, with the affidavit supporting the warrant attached, and he read the documents. She testified she was not aware that the affidavit was attached to the arrest warrant. She also testified that giving a defendant a copy of the arrest warrant was not part of the booking procedure.

Deputy Michael David Soileau was working the night patrol shift at the Calcasieu Parish Sheriffs Department when Reeves was brought into the booking area after he had spoken with Sergeant Hughes. While Reeves was being fingerprinted and booked, Deputy Soileau heard him “yell out real loud that he had killed that son of a b-be-

cause he was a queer and he kept messing with him, so he killed him.”

Deputy Kenneth Higginbotham testified he heard the defendant say that he was the one who killed “the guy because he was a faggot” as he was being booked by Deputies Richard and Brady. Deputy Higginbotham testified that he did not hear the exact questions the two deputies were asking the defendant, but he thought that they were soliciting routine booking information from him and were not interrogating him. He testified that Reeves did not appear to be emotionally upset as he was talking to the deputies.

Deputy Brady of the Calcasieu Parish Sheriffs Office was working as the intake officer on November 3, 1994. Deputy Brady did not testify at the suppression hearing, but he testified at trial. He took the defendant’s fingerprints and booked him. Regarding his exchange with Reeves he testified:

“... he was just coming in the jail and I asked him why he came in, why he was here. And then he stated if I remember right, that he had killed somebody. And I said, “You killed somebody?” He said, “Yeah, I killed him.” I said, “Well why did you kill him?” He said, “Because he’s a faggot and I don’t like faggots.” And I said, “You killed one faggot to come into a jail where they have literally hundreds of 'em?” And he didn’t say anything. And then | she said, ‘Well, if he wouldn’t of messed with me, I think at my sister’s grave, or my mother’s grave, that I wouldn’t have killed him.”

On cross-examination, defense counsel questioned Deputy Brady about who had initiated the conversation:

Q. And, Mr. Brady, you were the one that initiated the conversation with Mr. Reeves, were you not?
A. Yes, sir.
Q. And you asked him directly something about the case and his — what caused him to be arrested?
A. Yes, sir.
Q. He didn’t come in and voluntarily popping off and begin to make remarks about homosexuals and faggots and things of this nature?
A. No, sir.
Q. It was only after you questioned him that he made that comment?
A. Yes, sir, I asked him why he was in the pen.
Q. And he said he killed someone?
A. Yes, sir.
Q. And you asked him why?
A. Yes, sir.

Can the actions of the law enforcement officers be construed as further interrogation of the defendant in violation of his Fifth Amendment right to counsel? There are three (3) instances in this case where Reeves made statements to the police before receiving the advice of counsel. They are as follows: (1) his initial statement to Sergeant Hughes and the subsequent videotaped confession; (2) statements made by Reeves during the booking process; and, (3) statements made by Reeves when he asked Sergeant Hughes and Detective DeLouche to speak with them the following day.

16l- The Defendant’s initial statement to Sergeant Hughes and his subsequent videotaped confession.

Did Sergeant Hughes reinitiate the interrogation of Reeves when she told him he would not have another opportunity to tell his side of the story and gave him the copy of the arrest report and affidavit after he asked for an attorney? I think so. Should the officers have ceased their interrogation and not make any further comments to him after he invoked his right to counsel? I think so. Should a seasoned and experienced law enforcement officer such as Detective Hughes have been aware that telling the defendant he would not have another opportunity to tell his side of the story and giving him the arrest report and affidavit after he requested an attorney would reasonably be likely to elicit an incriminating response? I think so.

In State v. Abadie, 612 So.2d 1 (La.1993), the court determined that police attempts to get the defendant to submit to questioning about a murder as part of a polygraph examination amounted to “reapproaeh” or “reinitiation” of interrogation because the officer should have reasonably known that the suspect would believe this conduct was designed to elicit an incriminating response from him and, as the officer admitted, the polygraph was an attempt to question him further about the murder. The court set forth a two-step analysis to determine the admissibility of confessions made by a defendant after he has invoked his right to counsel. The court stated:

... it must first be asked whether defendant “initiated” further conversation, and if the answer is yes it then must be inquired whether defendant waived his right to counsel and to silence, “that is, whether the purported waiver was knowing and intelligent * * * under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983); See LaFave & Israel, Sect, 6.9 at 538.

Id.- at 5.

Citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the court in Abadie concluded that under Miranda, interrogation includes not only 17“express questions,” but also “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.” Abadie, 612 So.2d at 6. The court went on to state:

This is an objective test which does not require a determination of the actual perception of the suspect but prohibits police speech or conduct that creates a situation in which the suspect probably will experience the functional equivalent of direct questioning by concluding that the police are trying to get him to make an incriminating response. Lafave & Israel, Criminal Procedure Sect. 6.7, p. 501-02. (1984 & supp.1991); White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich.L.Rev. 1209, 1231-32 (1980).

Id.

The conduct of Sergeant Hughes amounted to a reapproach which she should have known would be reasonably likely to elicit an incriminating response from the defendant. Although she stated that she was unaware that the affidavit was attached to the arrest warrant, she also testified that providing a suspect with an arrest warrant and affidavit was not a normal part of the booking procedure. Therefore, Sergeant Hughes’ conduct qualifies as a reinitiation of contact which vitiates the validity of any waiver of rights by Reeves. Thus, Reeves’ videotaped confession should be suppressed.

2. Statements made by the Defendant during the booking procedure

Reeves invoked his right to counsel before he was booked by Deputy Brady, and knowledge of this invocation must be imputed to the officer. Even though Deputy Brady testified his intention was not to interrogate Reeves, he admitted that he initiated contact with the defendant, and he directly asked the defendant why he had been arrested. Thus, the statement made to Deputy Brady should ^ave ^een suPPressed-

Is3. Statements made by the Defendant to Sergeant Hughes & Detective DeLouche

Before a confession may be introduced into evidence, the state has the burden of proving that it was freely and voluntarily given, and not made under the influence of fear, duress, intimidation, menaces, inducements, or promises. La.R.S. 14:451; La.Code Crim.P. art. 703(D). In Louisiana, the statutorily-mandated test for voluntariness is not whether a confession was induced by improper external forces but whether the confession was free and voluntary. State v. Jackson, 381 So.2d 485 (La.1980). The state has the burden of affirmatively proving that the confession was free and voluntary. La.Code Crim.P. art. 703(D); La.R.S. 15:451.

The rule set forth by La.R.S. 15:451 complements the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) which deals with the Fifth and Fourteenth Amendment prohibitions against compelled self-incrimination. Under Miranda, a condition precedent to obtaining a statement admissible in court from a suspect in police custody is that the suspect be informed that he has the right to remain silent and to consult with an attorney. Miranda also made it clear that for such a statement to be admissible, it must be made with a knowing and intelligent waiver of those rights. State v. Green, 94-0887 (La.5/22/95); 655 So.2d 272. Miranda waivers may be either explicit or implicit, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Harvill, 403 So.2d 706 (La.1981), and their validity turns on the totality of the circumstances surrounding the statement. Butler, 441 U.S. at 374-375, 99 S.Ct. at 1757-1758.

Reeves contacted Sergeant Hughes and Detective DeLouche the day following his videotaped confession of his own accord and he informed them that the gun he used to commit the murder was stolen and he asked the officers what was going to happen to him. Although the facts suggest that Reeves reini-tiated contact with thejgofficers, that he was readvised of his Miranda rights and that he signed forms indicating he waived these rights, when viewing the facts of this case as a whole, these statements appear to be tainted by the previous violations of Reeves’ right to counsel. Furthermore, it appears that Reeves basically reiterated information he had already provided to the police.

I cannot say that the error in admitting the incriminating statements was insignificant nor can I say that the verdict was “surely unattributable to the error.” State v. Koon at 9, — So.2d at -. Thus, it was not harmless.

I respectfully dissent.  