State of Louisiana v. Samir Nunez-Melendez

STATE OF LOUISIANA * NO. 2023-K-0784

VERSUS *
COURT OF APPEAL
SAMIR NUNEZ-MELENDEZ *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 566-844, SECTION “DIVISION G”
Judge Nandi Campbell,
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Judge Joy Cossich Lobrano
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(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Paula A. Brown)

Jason R. Williams
District Attorney
Brad Scott
Chief of Appeals
Mark Nguyen
Assistant District Attorney
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/RESPONDENT

Ivan Alberto Orihuela
RIGUER SILVA, L.L.C
3213 Florida Avenue, Suite C
Kenner, LA 70065

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED; RELIEF DENIED

DECEMBER 29, 2023

JCL Relator, Samir Nunez-Melendez (“Defendant”), seeks review of the district

SCJ court’s October 13, 2023 ruling denying his motion to suppress statement and

PAB motion to suppress evidence. For the reasons that follow, we grant the writ

application, but deny the relief sought.

On January 26, 2023, an Orleans Parish grand jury returned an indictment

charging Defendant with first degree rape and indecent behavior with a juvenile

under the age of thirteen. After pleading not guilty, Defendant filed motions to

suppress on February 6, 2023, wherein he asserted that the statement he gave to

police was unlawfully obtained because he was given insufficient Miranda

warnings and that the warrants issued to search his phone and obtain a bucchal

swab were based on the unlawfully obtained statement. The district court held a

hearing on October 13, 2023, following which it denied the motions to suppress.

NOPD Special Victims Child Abuse Unit Detective Mario Bravo testified at

the motion hearing. Detective Bravo testified that on October 24, 2022, he

investigated a sexual assault upon a twelve-year-old female (“Victim”). He and

Detective Waldorious spoke to Victim’s parents, who reported that they confronted

Defendant and he admitted to a sexual relationship with Victim. Victim’s mother

showed Detective Bravo Instagram messages exchanged between Defendant and

Victim in which the possibility of her pregnancy resulting from the sexual

encounter was discussed. Detective Bravo also spoke to Victim, who confirmed

her sexual encounter with Defendant.

Detective Bravo detained Defendant and brought him to police headquarters

for questioning. At police headquarters, Detective Bravo presented Defendant with

a Spanish-language waiver of rights form and read the form to Defendant.

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Defendant acknowledged that he understood his rights and voluntarily elected to

speak with the detective. Defendant admitted to engaging in sexual intercourse

with Victim. Based on the interview, Detective Bravo prepared affidavits and

applied for warrants to examine electronic data stored on Defendant’s phone and to

obtain a buccal swap from Defendant, which the magistrate issued.

On cross-examination, defense counsel interrogated the detective about the

Spanish-language Miranda waiver of rights form. Detective Bravo stated that the

form provided that Defendant had the right to an attorney and that one would be

appointed to him before and during questioning in the event that he could not

afford one. Detective Bravo described the form, as translated, as follows, “It says

you have the right . . . to an attorney. So it says if you can not afford an attorney

one will be assigned for you prior or during the interrogation if you wish.”

In his writ application, Defendant claims that the Miranda warnings

provided “failed to inform defendant that he had a right to have any counsel

present before and during questioning.” He continues that the warnings “were

ambiguous and confusing in that they led the defendant to believe that he only had

a right to appointed counsel before and during questioning if he could pay for one.”

Defendant cites State v. Harris, 11-0941 (La. App. 4 Cir. 8/2/12), 98 So.3d 903, in

support of his argument that the Miranda warnings provided to him were

insufficient.

In Harris, this Court reversed the district court’s denial of the defendant’s

motion to suppress his statements, concluding that the detective’s warning to the

defendant that “he had a right to an attorney” was insufficient under Miranda. The

Court explained:

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A verbatim recitation of the warnings as set out in
Miranda is not required, and the Supreme Court has
“never insisted that Miranda warnings be given in the
exact form described in that decision.” Duckworth v.
Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 106 L.Ed.2d
166 (1989). “The inquiry is simply whether the warnings
reasonably convey to a suspect his rights as required by
Miranda.” Id. at 203, 109 S.Ct. 2875. While no exact
language is required, informing an individual of his right
to consult with a lawyer before interrogation and to have
a lawyer present with him during interrogation “is an
absolute prerequisite to interrogation.” Miranda, 384
U.S. at 471, 86 S.Ct. 1602.

Harris, 11-0941, p. 14, 98 So.3d at 914.

Subsequently, in State v. Williams, 13-1300 (La. App. 4 Cir. 6/4/14), 144

So.3d 56, the Court relied on Harris in finding that the Miranda warnings issued to

the defendant were insufficient. In Williams, the Court held that because the

interrogating officer failed to advise the defendant “that the right to an attorney

included the right to speak to an attorney before police interrogation and to have an

attorney present during such interrogation,” the warning that he “had a right to

attorney was insufficient under Miranda.” Id., 13-1300, p. 6, 144 So.3d at 59.

Harris’s continued viability was abrogated by the Supreme Court in State v.

Pilot, 17-1383 (La. 10/16/17), 318 So.3d 700 (mem.), and State v. King, 19-01332

(La. 4/3/20), 340 So.3d 754 (per curiam), where the Court found no Miranda

violation even when the advisement did not specify that the right to counsel

attached during questioning.

In State v. Pilot, the district court found the following Miranda warnings

administered to the defendant constitutionally deficient:

You have the right to remain silent. Anything you say can and will be
used against you in a court of law. You have the right to an attorney.
If you can’t afford an attorney, one will be appointed at no cost.

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This Court declined to exercise its supervisory jurisdiction on the basis that the

district court did not issue a substantive adverse ruling suppressing any statements.

Pilot, 17-0606 (La. App. 4 Cir. 8/2/17) (unpub’d). On review, the Supreme Court

reversed the district court’s finding that the Miranda warnings were deficient and

remanded the matter for further proceedings. Pilot, 17-1383, 318 So.3d 700.

In State v. King, the officer advised the defendant, “You have the right to

remain silent. Anything you say can and will be used against you in a court of law.

You have the right to an attorney and if you can’t afford one, one will be appointed

to you.” The district court granted the defendant’s motion to exclude his statements

from trial. The State sought supervisory review. This Court denied writs because it

found, consistent with Harris, that the Miranda warning was deficient because it

did not advise the defendant of the temporal aspects of his right to an attorney, i.e.,

that he had the right to an attorney both before and during any questioning. King,

19-0680, p. 1 (La. App. 4 Cir. 8/16/19) (unpub’d). The Supreme Court granted the

State’s writ application and held that “a general advisement like that given in this

case suffices, and that a statement need not be suppressed because of the failure to

qualify the warning with an additional advisement that the right to counsel exists

both before and during questioning.” King, 19-01332, p. 2, 340 So.3d at 755.

As in Pilot and King, nothing in the warnings administered to Defendant

implied any limitations on his right to counsel and certainly not the one claimed by

Defendant -- that he would, in essence, be penalized for retaining private counsel

and be prohibited from consulting with his (retained) lawyer during questioning as

opposed to availing himself of a lawyer appointed to him by the court to whom he

would have access during the course of a custodial interrogation. Relator’s claim

thus lacks merit.
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For the foregoing reasons, we grant the application for supervisory writ, but

deny relief.

WRIT GRANTED; RELIEF DENIED

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