State of Louisiana v. Junior Ray Fontenot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-553

STATE OF LOUISIANA

VERSUS

JUNIOR RAY FONTENOT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22163-03
HONORABLE ROBERT WYATT, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Carla S. Sigler
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Junior Ray Fontenot

AMY, Judge.

On December 11, 2003, the defendant was charged with the second degree

murder of his wife. During the trial, the defendant filed an oral motion to suppress

his videotaped statement. A hearing was conducted outside the presence of the jury,

and the motion was denied. On February 25, 2005, a jury found the defendant guilty

of second degree murder. The defendant was sentenced to life imprisonment at hard

labor without benefit of probation, parole or suspension of sentence. Alleging two

assignments of error, the defendant appeals. For the following reasons, we affirm and

remand with instructions.

Factual and Procedural Background

The record shows that the defendant, Junior Ray Fontenot, and his wife, Rufie

Mae Gallow, began having marital problems, which ultimately led Ms. Gallow to

obtain a protective order against the defendant. Ms. Gallow’s daughter, Carl Lynn

Gallow Guillory, testified that she and her brother asked the defendant to leave her

mother’s house in July of 2003. Mrs. Guillory’s brother took the defendant to Lake

Charles.

The events at issue in the case occurred on November 10, 2003. Charleta

Aaron explained that her house is directly across the street from the defendant’s

house in Lake Charles. Ms. Aaron testified that on November 10th, she woke up to

the sound of someone screaming, “Help, call the police.” Upon getting out of bed,

she peaked through her blinds and saw a woman trying to get into her house.

According to Ms. Aaron, while the woman was beating and pulling on the door, the

defendant pulled her arm and yanked her down. Ms. Aaron explained that the woman

broke loose and started running toward the end of the driveway. She fell and the

defendant began dragging her to her car. Ms. Aaron testified that the defendant was

yelling at the woman that he was her husband and “you see how this feel[s].” Ms.

Aaron saw the defendant place the woman into the driver’s side of a blue Cadillac,

move her over to the passenger side, and fasten her seatbelt before taking off in the

vehicle. Ms. Aaron later identified the defendant from a photographic lineup as the

man she saw that morning.

Cody Chaisson was on his way to school that morning when he heard someone

yelling, “Help, call the police!” Mr. Chaisson testified that when he walked to the

road, he saw a man standing in the road and a woman lying half in the road and half

in Ms. Aaron’s driveway. When his mother came outside, he told her to call the

police, which she did. Mr. Chaisson saw the woman get up and try to open Ms.

Aaron’s door, continuously calling for help. The defendant pulled her down and

dragged her back to the road. Mr. Chaisson testified that the defendant yelled, “Why

did you do this? You’re supposed to be my wife . . . Okay, you did what you had to

do. You’re satisfied. Go home now.” The defendant then threw some bags and keys

on her chest and told her to go home. According to Mr. Chaisson, the woman

appeared to be going in and out of consciousness. Mr. Chaisson watched as the

defendant put the woman in the driver’s side of the car and pulled her to the

passenger’s side. Mr. Chaisson testified that the defendant “got in the vehicle and he

drove off.”

Mr. Chaisson identified the defendant from a photographic lineup, noting that

his hair was different. Mr. Chaisson testified that he was thirty or forty yards from

the incident and had a clear view of events. According to Mr. Chaisson, he could see

a handle in the front of the defendant’s pants but was unable to see the blade. He

later told his mother and the police that he thought it was either a knife or a gun.

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Gaynell Chaisson, Cody Chaisson’s mother, also testified at the defendant’s

trial. Ms. Chaisson was getting ready for work that morning when she heard a voice

calling for help and for “someone [to] call 911.” When she went outside, she saw an

older woman being dragged by a man from Ms. Aaron’s door to the street. The

defendant threw keys at the woman. Ms. Chaisson noticed blood on the right side of

the woman’s abdomen. Ms. Chaisson testified that the defendant yelled at the

woman, “How could you do that? I’m your husband.” Ms. Chaisson saw something

with a brown handle tucked into the defendant’s pants. She watched the defendant

put Ms. Gallow in the car and leave the area. Ms. Chaisson later identified the

defendant as the man she saw that morning.

Around 7:00 a.m. that morning, Andrew Rider, an employee of Pine Shadows

Golf Course, was headed to work. Mr. Rider noticed a vehicle parked on the car path

between the sixteenth green and the seventeenth tee, which is in a thickly wooded

area about 150-200 yards from I-10. Mr. Rider asserts that the car would not have

been visible from I-10. Since there was not supposed to be anyone on the golf course

at that time, Mr. Rider approached the car. He heard the woman in the passenger’s

seat calling for help. Mr. Rider testified that he called 911 immediately after seeing

the blood on the woman’s shirt. Mr. Rider testified that the woman told him that her

husband, Junior Fontenot, had beaten her, stabbed her, taken the keys and run toward

the interstate.

Deputy Roy Malone and his trainee were employed by the Calcasieu Parish

Sheriff’s Office as patrol officers on November 10, 2003. They were dispatched to

Ellis and Jones Streets but were unable to locate the blue Cadillac. Deputy Malone

later received and responded to a call that a vehicle had been abandoned on Pine

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Shadows Golf Course, and en route, they were flagged down by Mr. Rider. Deputy

Malone testified that Ms. Gallow was in Mr. Rider’s truck, and it appeared to him that

she had a stab wound to her stomach. When he asked her who had done this to her,

she responded, “Junior Fontenot.” She also told him that Mr. Fontenot left in the

direction of the interstate.

Deputy Cornell Guidry and another deputy later found the defendant walking

through a cemetery located on Opelousas Street. The defendant was arrested and read

his rights. He subsequently gave a videotaped statement to the authorities, which was

introduced at trial.

Although Ms. Gallow was taken by ambulance to the hospital and underwent

surgery in an attempt to repair her injuries, she later died as a result of the stab

wound.

The defendant was charged with the second degree murder of Ms. Gallow. The

defendant’s videotaped statement was admitted into evidence. Following a jury trial,

the defendant was found guilty as charged. He was sentenced to life in prison at hard

labor without benefit of probation, parole or suspension of sentence. The defendant

appeals, asserting that there was insufficient evidence to find him guilty of second

degree murder and that a Motion to Suppress was improperly denied.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, we find

one error patent requiring correction. The defendant was not informed of the two-

year prescriptive period for filing an application for post-conviction relief as required

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by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to inform the

defendant of this time period by sending appropriate written notice to the defendant

within ten days of the rendition of this opinion. We further direct the trial court to

file written proof that the defendant received the notice in the record of the

proceedings.

Sufficiency of the Evidence

The defendant contends that the verdict of the jury was contrary to the law and

evidence as there was insufficient evidence to support a conviction for second degree

murder. The defendant argues that even with the admission of his statements, the

essential elements of second degree murder were not proven beyond a reasonable

doubt. He contends that the State did not prove that he had the specific intent to kill

or inflict great bodily harm. Instead, he argues that the evidence when viewed in the

light most favorable to the prosecution proves that he was guilty of manslaughter.

Second degree murder is defined at La.R.S. 14:30.1, which provides, in part:

A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict
great bodily harm[.]

In pertinent part, La.R.S. 14:31(A)(1) defines manslaughter as:

A. Manslaughter is:

(1) 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[.]

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The Louisiana Supreme Court has held that “‘sudden passion’ and ‘heat of

blood’ are . . . mitigatory factors in the nature of a defense which exhibit a degree of

culpability less than that present when the homicide is committed in the absence of

these factors.” State v. Snyder, 98-1078, p. 4 (La. 4/14/99), 750 So.2d 832, 837-38,

citing State v. Lombard, 486 So.2d 106 (La.1986). If a defendant establishes, by a

preponderance of the evidence, the presence of these mitigating factors, he or she is

entitled to a verdict of manslaughter. Id.

When a defendant raises the issue of sufficiency of evidence on appeal, a

reviewing court, considering the evidence in the light most favorable to the

prosecution, must determine whether any rational trier of fact could have found that

the essential elements of the offense were proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “The actual trier of fact's

rational credibility calls, evidence weighing and inference drawing are preserved

through the requirement that upon judicial review all of the evidence is to be

considered as if by a rational fact finder in the light most favorable to the

prosecution[.]” State v. Mussall, 523 So.2d 1305, 1311 (La.1988). See also State v.

Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50.

A review of the evidence supports the jury’s finding that the defendant was

guilty of second degree murder. In addition to the eyewitness accounts, discussed

above, a videotaped statement made by the defendant was entered into evidence. A

review of the defendant’s statement revealed that he and Ms. Gallow were

experiencing marital difficulties. The defendant explained that an argument ensued

in which there was some shoving, and the defendant stabbed Ms. Gallow. Instead of

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taking her to the hospital, the defendant left Ms. Gallow in a car parked on a golf

course.

Our review of the videotape does not indicate that the jury was required to find

that the defendant acted in “sudden passion” or “heat of blood.” In fact, no evidence

presented to the jury was sufficient to compel them to accept the defendant’s

manslaughter defense. To the contrary, the evidence supports the jury’s finding of

intent. In sum, the evidence when viewed in the light most favorable to the

prosecution is sufficient to convict the defendant of second degree murder.

Accordingly, this assignment lacks merit.

Motion to Suppress

The defendant asserts that the trial court erred in denying a motion to suppress

a videotaped statement that he made to authorities after he invoked his right to

counsel. He argues that because of his age and educational background, no

questioning should have been conducted until the defendant had the opportunity to

consult with an attorney. The defendant also contends that he did not effectively

waive his right to counsel.

In accordance with La.R.S. 15:451, before the State introduces a statement

purporting to be a confession, “it must be affirmatively shown that it was free and

voluntary, and not made under the influence of fear, duress, intimidation, menaces,

threats, inducements or promises.”

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the United States

Supreme Court held that if the defendant makes a statement during custodial

interrogation, the State must prove that the defendant was advised of his

constitutional rights and that he voluntarily, knowingly, and intelligently waived

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those rights. Here, the record indicates that defendant was arrested and read his

rights. The defendant told officers that the knife was underneath his house. After

showing officers the knife’s location, the defendant said, “I want a judge. I want a

lawyer.” It is unequivocal that the defendant invoked his right to counsel. In the

event that the right to counsel is invoked, “all questioning must cease and the accused

is not subject to further interrogation until counsel has been made available to him,

unless he initiates further communication, exchanges or conversation with the police

and validly waives his earlier request for counsel.” State v. Koon, 96-1208, p. 6 (La.

5/20/97), 704 So.2d 756, 762, citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.

1880 (1981).

The record supports a finding that the defendant waived his request for counsel

as testimony indicates that he reinitiated contact. Detective Greg Kellogg of the

Calcasieu Parish Sheriff’s Office testified that when the defendant asked how his wife

was doing, he told the defendant that he “couldn’t talk to him due to the fact that he

requested a -- a lawyer.” He informed the defendant that the lead investigator on the

case was Andree Daugereaux. Detective Kellogg explained that the defendant then

asked if he could talk to her.

Detective Daugereaux visited the defendant’s holding cell after she learned that

he wanted to speak with her. Major Mike Brynes accompanied her. Detective

Daugereaux testified that she asked the defendant twice if he wanted to talk to her.

He responded affirmatively both times. According to Detective Daugereaux, Major

Byrnes told the defendant that if he wished to stop after his rights were read to him,

he could do so and ask for an attorney. Detective Daugereaux testified that the

defendant said that he understood.

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Detective Daugereaux stated that she explained the form used to advise him of

his rights and on which he could indicate the waiver of those rights. The defendant

initialed beside each sentence setting forth his rights, indicating that he understood

them. He also signed the waiver of rights form. According to Detective Daugereaux,

the defendant gave an account of the day’s events and never asked to stop the

questioning. Detective Daugereaux confirmed that it appeared that the defendant

wanted to assist in the investigation.

A review of the videotape supports Detective Daugereaux’s testimony that the

defendant waived his rights to an attorney. We, therefore, find that the trial court did

not abuse its discretion in denying the defendant’s motion to suppress.

Furthermore, insofar as the defendant reurges his assertion that the questioning

sheriff’s deputies were responsible for obtaining him counsel, we find no merit in this

assertion. Louisiana Code of Criminal Procedure Article 230.1(A)(emphasis added)

provides that “[t]he sheriff or law enforcement officer having custody of an arrested

person shall bring him promptly, and in any case within seventy-two hours from the

time of arrest, before a judge for the purpose of appointment of counsel.” See also

La.Code Crim.P. art. 230.1(B)(emphasis added), which instructs that “if a defendant

has the right to have the court appoint counsel to defend him, the court shall assign

counsel to the defendant.” These provisions do not indicate that it is the investigating

officers’ responsibility to obtain counsel for the defendant. Further, we note that only

three hours lapsed between the defendant’s arrest and his statement.

For these reasons, this assignment lacks merit.

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DECREE

For the foregoing reasons, the defendant’s conviction is affirmed. The matter

is remanded with instructions to the trial court to inform the defendant of the

provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the

defendant within ten days of the rendition of this opinion. The trial court is further

instructed to file written proof in the record of the proceedings that the defendant

received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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