State of Louisiana v. Gregory Anderson Coutee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-568

STATE OF LOUISIANA

VERSUS

GREGORY ANDERSON COUTEE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 281725
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

AFFIRMED.

James C. Downs
District Attorney - Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for Plaintiff/Appellee:
State of Louisiana

Monique Yvette Metoyer
Attorney at Law
2729 Overton Street
Alexandria, LA 71301
(318) 473-6650
Counsel for Plaintiff/Appellee:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Gregory Anderson Coutee

Gregory Anderson Coutee
Louisiana State Penitentiary
Hickory 2
Angola, LA 70712

EZELL, JUDGE.

On March 22, 2006, the Defendant, Gregory Anderson Coutee, was originally

charged with armed robbery. The bill of information was amended on June 21, 2006,

charging the Defendant with first degree robbery, a violation of La.R.S. 14:64.1. A

jury trial began on October 17, 2006, and the jury returned a guilty verdict on October

18, 2006. The Defendant was sentenced on October 27, 2006, to serve forty years at

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

Defendant is now before this court on appeal, asserting that the evidence is

insufficient to convict him of first degree robbery, and that the trial court erred in

denying his motion to suppress.

FACTS

On January 23, 2006, the Defendant entered the Lexington Self Storage and

robbed the owner, David Paulk, who was working that day. The Defendant was

found that same day at the residence of Nicole Howard and was subsequently arrested

on outstanding warrants. After the Defendant was read his Miranda rights, he

confessed to the robbery and informed officers where the stolen items, a wallet and

checkbook, could be found in the residence. Ms. Howard gave her consent to search

the residence, and the stolen items were retrieved.

ASSIGNMENT OF ERROR

By this assignment of error, the Defendant argues that the evidence was

insufficient to convict him of first degree robbery. The analysis for a claim of

insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical
inquiry of the reviewing court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62

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L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

First degree robbery is defined in La.R.S. 14:64.1, which states, in pertinent

part:

A. First degree robbery is the taking of anything of value
belonging to another from the person of another, or that is in the
immediate control of another, by use of force or intimidation, when the
offender leads the victim to reasonably believe he is armed with a
dangerous weapon.

Thus, the State had the burden of showing that: 1. an object was taken; 2. the object

had value; 3. the object belonged to another or was in the immediate control of

another; 4. force or intimidation was used to take the object; and, 5. the victim

believed the offender was armed with a dangerous weapon. In the instant case, the

Defendant questions whether the State proved the element of force or intimidation to

commit the taking while leading Mr. Paulk to believe he was armed with a dangerous

weapon.

The victim, David Paulk, testified that he was working at his business,

Lexington Self Storage, on the morning of January 23, 2006. He explained that

around 10:00 a.m., the Defendant entered the business and inquired about renting a

storage space. Mr. Paulk informed the Defendant that he did not have any of the size

requested available. The Defendant left the building, and Mr. Paulk assumed that the

Defendant had driven out the parking lot. Instead, the Defendant drove back behind

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the storage buildings and parked his vehicle between the buildings, out of Mr. Paulk’s

sight.

Next, the Defendant entered the business again and asked Mr. Paulk to loan

him twenty dollars. Mr. Paulk refused, and the Defendant asked him again. When

Mr. Paulk refused the second time, Mr. Paulk testified that the Defendant jumped at

him, grabbed him, pulled him up out of his chair and threw him in a storage closet.

Mr. Paulk was fearful from the moment the Defendant first grabbed him because the

Defendant was a much larger man and was a stranger to him. Mr. Paulk testified that

he was 5'6" tall and weighed 170 pounds, whereas he believed the Defendant to be

about 6'2" tall and weighing 240 pounds. At the time the Defendant was booked, he

measured 6'0" tall and 245 pounds.

According to Mr. Paulk, the storage room was very well lit. Mr. Paulk hit the

wall in the storage room with enough force to bust a hole in the sheetrock.

Photographs of the storage closet and damage to the sheetrock were submitted into

evidence as exhibits 6, 7, 11, 28, and 29. The Defendant subsequently got Mr. Paulk

down on the floor and tied Mr. Paulk’s hands behind his back with speaker wire he

pulled off an old computer in the storage room. Mr. Paulk was able to break loose

and the Defendant pulled the speaker wire off another computer and tied Mr. Paulk

up again. As the men continued to fight in the closet, the Defendant got Mr. Paulk

down on the floor and tied him up again with a piece of electrical wiring. The

Defendant was on Mr. Paulk’s back with Mr. Paulk’s face down and his head against

the floor. At that time, Mr. Paulk saw the Defendant reach behind himself and pull

something from his waistband or a pocket. At that time, Mr. Paulk believed, without

a doubt, that the Defendant was armed with a weapon. Mr. Paulk could not identify

the object, only that it was brown colored. He thought the object was either the butt

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of a gun or a knife. Mr. Paulk was unable to look up and exactly identify the object.

Mr. Paulk stated that the Defendant did not touch him with the object, such as

touching him with the tip of a gun or holding a knife against his neck. Additionally,

nothing was demanded of Mr. Paulk during the time the Defendant was holding the

object and the Defendant never said that he had a weapon while they were in the

storage room.

Mr. Paulk stated that he believed that the Defendant was going to kill him, so

he decided to stop fighting in hopes that the Defendant would take what he wanted

and leave the building. He was not sure what the Defendant did with the object, but

speculated that the Defendant put it back in his pocket or waistband.

Mr. Paulk testified that, at that time, the Defendant took his wallet and

checkbook from his pocket and some cash that was on his desk. Next, the Defendant

told Mr. Paulk that he was getting his gun and was going to kill him, then ran out of

the door. Mr. Paulk believed at that time that the Defendant had the power to execute

the threat. Mr. Paulk explained that the Defendant went back behind the building, got

in his truck, and drove away. After freeing himself, Mr. Paulk observed the direction

in which the Defendant was driving and called 911 and reported the crime.

Corporal Kenneth Rachal of the Alexandria Police Department was dispatched

to the crime scene and interviewed Mr. Paulk. Upon learning that the assailant left

the scene in a brown Suburban and the direction it was headed, Corporal Rachal

instructed Officer Ducote to see if he could locate the vehicle. Corporal Rachal

joined Officer Ducote after locating the vehicle at a residence of Nicole Howard and

the officers learned that the vehicle belonged to the Defendant and that the Defendant

was inside the residence. The Defendant came out of the house, was informed of his

Miranda rights, arrested for outstanding warrants, and placed in the back of a police

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unit. At that time, the Defendant told the officers where the stolen items were

located. After officers were given consent by Ms. Howard to search the residence,

the items were retrieved from the exact locations as reported by the Defendant.

Corporal Rachal testified that, when searching the residence for the stolen items, he

did not look for a weapon at that time.

Officer Douglas Prestridge of the Alexandria Police Department testified that

he was dispatched to the scene of the crime around 10:00 a.m. Officer Prestridge did

not find a weapon at the crime scene. Detective Stephen Constantino testified that

the Defendant’s vehicle was thoroughly searched and a weapon was not found.

Officer James David King was present when the Defendant disrobed at the hospital,

and he testified that no weapon was found.

In his brief to this court, the Defendant maintains that under a traditional strict

interpretation of this statute, the jury could not have concluded beyond a reasonable

doubt that the Defendant used force or intimidation to commit the taking while

leading the victim to believe he was armed with a dangerous weapon. The Defendant

explains that the statute makes no mention of the use of force or intimidation to retain

the property or effect escape. In support of his argument, the Defendant refers this

court to State v. Fortune, 608 So.2d 148 (La.1992). In Fortune, the court provided

the following interpretation of the first degree robbery statute, La.R.S. 14:64.1:

The statute has objective and subjective components. It requires the
state to prove that the offender induced a subjective belief in the victim
that he was armed with a dangerous weapon, and that the victim’s belief
was objectively reasonable under the circumstances. The statute thus
excludes unreasonable panic reactions by the victim but otherwise
allows the victim’s subjective beliefs to determine whether the offender
has committed first degree robbery or the lesser offense of simple
robbery in violation of La.R.S. 14:65. Cf. State v. Byrd, 385 So.2d 248
(La.1980). To this extent, La.R.S. 14:64.1 differs from other robbery
statutes in which the threat of force alone constitutes a violation of the
statute despite its failure to place an atypical victim in actual fear. See
Commonwealth v. Mays, 248 Pa.Super. 318, 375 A.2d 116 (1977); State

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v. Birch, 479 N.W.2d 284 (Iowa 1991).

Id. at 149.

In the instant case, the Defendant argues that Mr. Paulk only stated that the

Defendant said he had a gun as he was leaving and that Mr. Paulk was already tied

up and his possessions taken. The Defendant concludes that because there was no

mention of a weapon, nor was one alluded to at the time of the taking, his conviction

should be reversed, or this court should enter a conviction for simple robbery. Lastly,

the Defendant complains that Mr. Paulk never identified the Defendant at trial as the

individual who assaulted him and stole his wallet and checkbook.

The court finds, using the analysis set forth in Fortune, the evidence in the

record clearly supports the jury’s verdict of first degree robbery. Mr. Paulk’s

testimony demonstrated the subjective belief that the Defendant was armed with a

dangerous weapon at the time Mr. Paulk’s possessions were taken. First, the

Defendant was extremely physical with Mr. Paulk, smashing him into a wall and

tying his hands behind his back several times. Then, during the time of this physical

altercation with the Defendant, a man much larger than Mr. Paulk, Mr. Paulk saw the

Defendant remove from his back pocket or waistband a brown object which could

have been the butt of a gun or a knife.

Further, the objective components of the crime also support Mr. Paulk’s belief

that the Defendant was armed with a dangerous weapon. Considering Mr. Paulk’s

position, face down on the floor with the Defendant on his back at the time the

Defendant pulled out the object seen by Mr. Paulk, one could conclude it was

reasonable for him to believe that the object he saw was a possible weapon. Mr.

Paulk expressed his fear of the Defendant from the outset of the crime and, as

mentioned above, the Defendant was extremely physical with Mr. Paulk and the

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Defendant was much larger than he. Considering same, we find that these facts

exclude any possibility that Mr. Paulk experienced an unreasonable panic reaction as

described in Fortune with regard to his belief that the Defendant was armed with a

dangerous weapon.

Next, the Defendant complains that Mr. Paulk never identified the Defendant

at trial as the individual who assaulted him and stole his wallet and checkbook. The

record confirms that Mr. Paulk did not identify the Defendant at trial. Mr. Paulk did,

however, identify the Defendant in a photograph taken at Ms. Howard’s residence on

the day of the crime when shown the photograph at trial. Mr. Paulk also identified

the Defendant’s getaway vehicle in a photograph. Additionally, Officer Rachal

identified the Defendant in the courtroom as the person who told him where the

wallet and checkbook were located. Further, Sergeant Gleason, the officer that placed

the Defendant in handcuffs at the time of his arrest, identified the Defendant in the

courtroom as the same person he had arrested that day. Considering Mr. Paulk’s

identification of the Defendant in the photograph submitted into evidence, as well as

the identification of the Defendant by the officers involved in the investigation, we

find that the identification of the Defendant as Mr. Paulk’s assailant was sufficiently

proven at trial.

SUPPLEMENTAL ASSIGNMENT OF ERROR AND PRO SE

SUPPLEMENTAL ASSIGNMENTS OF ERROR NUMBER TWO AND

THREE

Counsel for the Defendant filed a supplement brief setting forth a supplemental

assignment of error. Additionally, the Defendant filed, pro se, a supplemental brief

alleging the same assignment of error in supplemental assignments of error number

two and three.

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Counsel for the Defendant argues that the trial court erred in denying his

motion to suppress the Defendant’s statement wherein he told officers where to locate

Mr. Paulk’s wallet and checkbook inside Ms. Howard’s residence. The Defendant,

pro se, asserts that his statement was not given freely and voluntarily because he was

unable to understand his rights in his intoxicated condition. Further, the Defendant

maintains that he was not properly advised of his Miranda rights because he was in

a state of incapacitation.

In his motion to suppress filed on June 12, 2006, the Defendant asserted to the

trial court that he was visibly sick and ill, and after being arrested, he had to be rushed

to the emergency room. The Defendant maintained that he “was in a sick state of

drug substance abuse state of mental illness and did not know what he was doing or

saying due to his being sick for drugs.” [sic]. Accordingly, the Defendant maintained

that the evidence obtained as a result of questions the Defendant answered following

his arrest is fruit of the poisonous tree. The Defendant averred that he was not in his

right state of mind and could not give voluntary consent to be questioned. Further,

the Defendant complained that he was arrested for a non-related violation, and

therefore, the officers did not have probable cause to search Ms. Howard’s residence.

The Defendant concludes that the officers found the robbery evidence through

improper questioning of the Defendant and the illegal search of Ms. Howard’s

residence without probable cause or proper consent.

The trial court denied the Defendant’s motion without a hearing on June 15,

2006. In its handwritten reason for denying the motion, the trial court stated, “Motion

denied; the motion is so grammatically incorrect that it lacks merit on its face.”

A second motion to suppress was filed by the Defendant on June 26, 2006, and

a contradictory hearing was held on August 28, 2006. In denying the Defendant’s

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motion, the trial court stated:

I find that the statements that he made to Officer Rachal and Gleason
were free and voluntary. The evidence is that there was a robbery
reported, that they had information to believe that he may have been the
defendant and they knew of the approximate location where they could
find him. They went to that location. Officer Rachal said that he asked
him some questions -- well, he advised him of his rights. That at the
time that he was discussing his rights with him and the evidence about
this crime, that he did not appear to be in any distress whatsoever, that
he understood the rights, he did not appear to be under the influence of
drugs, that he made his statement, that he consented freely and
voluntarily. And it was only after he was placed in the police car that he
complained of chest pains. That was after the statements were made.
I have no evidence before me today to show that he had recently
ingested crack cocaine. And even if he had ingested crack cocaine, the
law says, “Likewise, intoxication does not vitiate a confession unless it
is to the degree of nullifying the accused’s comprehension and renders
him unconscious of the consequences of what he is saying.” State v.
Fugler, which is 721 So.2d 1, State v. Ouzts, 777 So.2d 1286, State v.
Toney, 796 So.2d 1, and State v. Barthe, 806 So.2d 53. And there’s
other cases that are listed. I’m not going to cite all those. But I don’t
believe that there was any intoxication to the degree to nullify his
comprehension or render him unconscious. Obviously, that was not
present. I believe that he knew what was going on, he was responsive
to the questions, he answered their questions and only after answering
those questions and being arrested on the charge did he complain about
chest pains. So -- and I don’t know if that was a valid complaint or not
about whether or not he had chest pains -- so I am going to order that the
motion to suppress be denied.

In his brief to this court, the Defendant asserts that he was taken to the hospital

immediately after giving his statement due to complaints of chest pains and his

admission of having just smoked crack cocaine. According to the Defendant, he was

unable to sign his advice of rights form at 10:45 a.m. Further, the Defendant refers

this court to the hospital discharge summary which allegedly states that the

Defendant’s hands and fingers appeared to be sooty and burned and his lips blistered

from smoking crack cocaine. The Defendant asserts that he was given Ativan and

Morphine until his condition improved and that he was diagnosed with

rhabdomyolysis secondary to cocaine. In his pro se brief to this court, the Defendant

complains that the trial court erred because it chose to ignore the medical reports and

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findings of the treating physician which he maintains clearly show that he had

ingested a large quantity of crack cocaine. The Defendant also contends that greater

weight should have been given to his medical records than to the testimony of the

“admission worker/intake officer’s” comments.

With regard to the advice of rights form, the document reflects the signatures

of Officer Rachal and Sergeant Gleason as witnesses and indicates that the Defendant

was unable to sign, but gave his verbal understanding of his rights. At the hearing,

Detective Darrell Thiels testified that he was dispatched to the location where the

Defendant was apprehended. Detective Thiels stated that the Defendant was unable

to sign the advice of rights form because he was at the hospital at the time the form

was completed. Detective Thiels explained that the advice of rights form, as well as

the booking sheet and felony bond sheet, were filled out as they are in all normal

arrests and they were presented to the booking officer so the Defendant could be

booked. Thus, Detective Thiel’s testimony suggests that the lack of the Defendant’s

signature was due to his absence, not because he did not understand his rights.

Further, Detective Thiels stated that he had the chance to speak to the

Defendant before he went to the hospital and the Defendant did not appear

disoriented or to be under the influence of drugs or alcohol. Further, the Defendant

appeared to be able to understand everything that was going on. Detective Thiels also

testified that the Defendant was sweating profusely but did not indicate to any of the

officers that he had used drugs or alcohol. On cross-examination, Detective Thiels

stated that in his seventeen years of being on the force, he would recognize if

someone was on crack cocaine and that the Defendant did not appear to be on crack

cocaine. Detective Thiels attributed the Defendant’s sweating to the unseasonably

warm temperature and because the Defendant was very nervous.

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Officers Rachal and Gleason also testified at the hearing regarding the

Defendant’s mental orientation at the time of his statement. Officer Rachal stated that

he verbally advised the Defendant of his rights prior to putting him in the police unit,

but he did not have an advice of rights form with him at that time. In Officer

Rachal’s opinion, he believed that the Defendant appeared to understand his rights,

and based on his knowledge, training, and experience, the Defendant did not appear

to be under the influence of alcohol or drugs. Officer Rachal stated that he has

arrested people under the influence of crack cocaine and other illegal narcotics and

would recognize a person disoriented because of drugs. The Defendant was able to

coherently convey his thoughts to the officers, speak in good English, and in

complete sentences and his words were not slurred. The Defendant did not appear

to be in any physical duress. Officer Rachal did admit, however, that the Defendant

appeared nervous from the officers’ presence and his wanting to know why the

officers were there and the source of the problem. The Defendant was also sweating

which Officer Rachal attributed to nervousness.

Officer Rachal also testified that, prior to reading the Defendant his rights, the

Defendant wanted to say something. At that time, Officer Rachal stopped the

Defendant and told him that the officers had to advise him of his rights first before

he could say anything. After the Defendant was advised of his rights, he was asked

if he wanted to make a statement which is when the Defendant told officers where the

items were located in the residence. At no time did the Defendant tell Officer Rachal

that he did not want to make a statement or invoke his right to counsel. Additionally,

Officer Rachal stated that he did not threaten the Defendant in any way or promise

him anything to induce his statement. According to Officer Rachal, the Defendant

made his statement freely and voluntarily. Lastly, Officer Rachal testified that, prior

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to giving his statement, the Defendant said nothing about being on crack or that he

felt he was having a heart attack, nor did the Defendant complain of having chest pain

before he was Mirandized. The Defendant did not tell Officer Rachal that he had

ingested crack cocaine, nor did Officer Rachal ask the Defendant if he had been

smoking crack cocaine. Officer Rachal estimated that the Defendant began

complaining of chest pain fifteen to twenty minutes after he sat in the police unit.

Officer Gleason testified that the Defendant did not appear to be in any

physical duress when he was approached on the porch of the residence. Also, Officer

Gleason was standing next to Officer Rachal when the Defendant was verbally

Mirandized by Officer Rachal, and the Defendant did not appear to be in any physical

duress at that time. In Officer Gleason’s opinion, based on his knowledge, training,

and experience, the Defendant appeared to understand his rights and did not appear

to be under the influence of any alcohol or drugs, nor was he disoriented. The

Defendant was able to respond in a manner that the officers could understand. Based

on what Officer Gleason witnessed, the Defendant appeared to make his statement

freely and voluntarily.

Officer Gleason testified further that the Defendant did not appear nervous at

first, but started sweating once he was put in the back of Officer Gleason’s unit to

secure him. He did not appear to have any health problems prior to the time Officer

Gleason placed the Defendant in his unit. When the Defendant started to appear

distressed, Officer Gleason got the Defendant out of the vehicle and removed the

handcuffs securing his hands behind his back. Officer Gleason felt that the stress put

on the Defendant with his arms behind his back may have added to his discomfort.

The Defendant was then complaining of chest pain, but he did not tell the officers that

he had smoked crack before their arrival.

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To prove that the Defendant was not coherent or lucid at the time of his

confession, the Defendant’s medical records from L.S.U. Huey P. Long Charity

Hospital, where he was admitted following his arrest, were submitted into evidence.

The trial court reviewed the medical records, and defense counsel directed the court

to the pertinent pages pertaining to the Defendant’s mental condition during his stay.

Next, as part of the Defendant’s argument, he maintained that his statement was made

under physical and mental duress because he had ingested crack cocaine. The trial

court asked for evidence that the Defendant had ingested cocaine. The Defendant

referred the trial court to the medical records. The trial court asked defense counsel

to show him one page that supported the Defendant’s argument and was unable to do

so other than references made to traces of crack cocaine and other illegal substances

in the Defendant’s urine. Thus, other than the Defendant’s own statement to defense

counsel and/or the hospital that he had ingested cocaine prior to being questioned and

the medical records submitted, the Defendant offered no other evidence at the hearing

that the Defendant’s cocaine use interfered with the understanding of his rights and

his subsequent confession. The Defendant did not testify at the hearing that he used

cocaine prior to making his statement or, as a result of same, that he was incoherent

at the time of his confession.

A review of the Defendant’s medical records indicates that he was admitted to

the emergency room and seen by a triage nurse at 1:01 p.m. with the chief complaint

of chest pain, sudden onset, after smoking crack that morning. He also complained

of a burn to his right middle finger from a crack pipe. The triage nurse noted that the

Defendant was alert and in no acute distress, his breathing pattern was normal, his

skin was dry, pink, and warm, and he was awake, alert, and oriented to person, place,

and time. The Defendant was described as calm and cooperative.

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At 1:06 p.m., Dr. William Clark examined the Defendant. The Defendant

reported to Dr. Clark that the burns to his finger were from chronic crack use. Dr.

Clark’s examination revealed no significant abnormality in any of his body systems,

including his neurological functioning. Dr. Clark reported that the Defendant was in

no acute change from his baseline condition, appearance, and health, and was non-

toxic and in no apparent distress. The Defendant’s cranial nerves were intact, he was

active neurologically, had no extremity weakness, ambulated without difficulty, and

his mental status was baseline for his age, gender, and conditions. The Defendant had

no sensory deficits and was awake, alert, and oriented as to person, place, and time.

A patient rights/advance directive acknowledgment statement was given to the

Defendant by the admit clerk who advised the Defendant of his patient rights and

responsibilities. The Defendant acknowledged that he had received the information

by signing and dating the top portion of the form. The bottom portion of the form

was to be completed by the Defendant’s admitting nurse who indicated that the

Defendant was falling asleep during the interview, and she was unable to discuss

whether he desired to establish an advance directive at that time. We note that the

time the form was completed by the admit clerk or admitting nurse is not indicated

on the document and, thus, it is not possible to determine whether the form was

completed at the time of his arrival at the emergency room or when he was transferred

from the emergency room to the hospital unit at 5:40 p.m. for further observation.

The Defendant could have been medicated prior to receiving the form. The medical

records indicate that the Defendant was given 2 mg of Ativan IV at 1:27 p.m. Also,

the Defendant was given 6 mg of Morphine IV at 4:03 p.m. after complaining at 3:55

p.m. of a throbbing sensation to his left index finger.

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The Defendant’s hospital discharge summary reflects an admitting diagnosis

of “rhabdomyolysis secondary to cocaine; rule out acute coronary syndrome.” He

was discharged on January 26, 2006, and no discharge diagnosis is noted. The

history of his present illness indicates that he presented with left-sided chest pain and

left arm pain, no diaphoresis, and pain at the left index finger.1 The Defendant

reported a myocardial infarction at age 21 which the physician found questionable.

In his social history, the Defendant admitted to smoking cocaine. During the course

of his hospitalization, the Defendant’s cardiac status improved as reflected in the

cardiac lab results. The focus of his stay turned to his left index finger which had an

abscess and to a cyst on his neck located in the upper right side of the neck. During

his stay, the Defendant underwent an incision and drainage of an abscess on his left

index finger and the subcutaneous cyst on his neck was removed.

As noted by this court in State v. Brooks, 505 So.2d 245, 247 (La.App. 3 Cir.

1987),

Before a confession can be introduced into evidence, the state has
the burden of proving that the confession was free and voluntary.
La.R.S. 15:451. Where the free and voluntary nature of a confession is
challenged on the ground that the accused was intoxicated at the time of
interrogation, the confession will be rendered inadmissible only when
the intoxication is of such a degree as to negate defendant’s
comprehension and to render him unconscious of the consequences of
what he is saying. Whether intoxication exists and is of a degree
sufficient to vitiate the voluntariness of the confession is in the first
instance a question for the trial judge. His conclusions on the credibility
and weight of the testimony relating to the voluntariness of a confession
will not be overturned unless they are not supported by the evidence.
State v. Robinson, 384 So.2d 332, 335 (La.1980).

Additionally, the supreme court noted in State v. Manning, 03-1982, p. 26 (La.

10/19/04), 885 So.2d 1044, 1074, cert. denied, 544 U.S. 967, 125 S.Ct. 1745 (2005).

that “the mere fact of drug or alcohol intoxication is insufficient standing alone to

1
Diaphoresis is defined as profuse sweating.

15

render a confession involuntary. See State v. Davis, 92-1623 (La. 5/23/94), 637 So.2d

1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450 (1994)(confession voluntary although

defendant had smoked three or four cocaine rocks the night before his 11 p.m.

statement, as well as consumed several beers the day he confessed).”

In the instant case, we find that the evidence adduced at the hearing on the

Defendant’s motion to suppress clearly indicates that the Defendant used crack

cocaine. However, there was no evidence that the Defendant was under the influence

of crack cocaine at the time of his confession to the extent that it negated his

comprehension and rendered him unaware of the consequences of what he was

saying.

The Defendant correctly asserts that he was taken to the hospital immediately

after giving his statement due to complaints of chest pains. However, there is no

evidence, as alleged by the Defendant, that he admitted or reported to the arresting

officers that he had just smoked crack cocaine which was allegedly causing his chest

pain. Further, the testimonies of Officers Rachal and Gleason and Detective Thiels

indicate that the Defendant did not appear to be under the influence of drugs and

appeared to understand his rights. All three officers had experience with identifying

drug intoxication and disorientation. The Defendant did not report cocaine use until

he presented to the hospital, and even then, the physical assessment by the emergency

room nurse and physician both indicate that the Defendant was in no acute or

apparent distress, was oriented to person, place, and time, was neurologically intact

and had no sensory deficits.

As to the Defendant’s allegation that he was unable to sign his advise of rights

form at 10:45 a.m., Officers Rachal and Gleason and Detective Thiels explained that

the Defendant had gone to the hospital before they had the chance to present the form

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to the Defendant for his signature. Thus, the lack of a signature was due to the

Defendant’s absence, not because of his inability to sign the document. The

Defendant’s hospital discharge summary supports his contention that he abuses

cocaine and reflects a diagnosis of Rhabdomyolysis secondary to cocaine. However,

the document does not reflect that the Defendant was incoherent from cocaine

ingestion at the time he was Mirandized. The Defendant was given Ativan and

Morphine as stated in his brief. We note, however, that the Morphine was given to

relieve pain in his left index finger and was not related to cocaine ingestion.

As to the Defendant’s sleepiness during the interview upon his admission to

the hospital, we mentioned above that the time the form was filled out is unknown.

Further, the form could have been filled out up his arrival at the emergency room or

at the time of his admission to the hospital. The Defendant was medicated on two

separate occasions, either of which could have caused the Defendant’s drowsiness.

Without any additional information, the fact that the Defendant was falling asleep at

the time his admit nurse was completing the lower portion of the patient

rights/advance directive acknowledgment statement does not prove that the

Defendant was incapacitated from cocaine at the time he was Mirandized.

Considering the evidence presented at the hearing, we find that the State met

its burden of proving that the Defendant’s confession was free and voluntary. The

evidence supports the State’s contention that Defendant was properly advised of his

Miranda rights as he has not shown that he was in a state of incapacitation at that

time. Accordingly, we find that these assignments of error are without merit.

CONCLUSION

The Defendant’s conviction is affirmed.

AFFIRMED.

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