State of Louisiana v. Damon Broeske Frye

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-904

STATE OF LOUISIANA

VERSUS

DAMON BROESKE FRYE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 4161-07
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
David L. Kimball
Assistant District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Damon Broeske Frye

DECUIR, Judge.

Defendant, Damon Broeske Frye, was indicted on one count of first degree

murder, a violation of La.R.S. 14:30, attempted first degree murder, a violation of

La.R.S. 14:30 and 14:27, armed robbery, a violation of La.R.S. 14:64, and aggravated

kidnapping, a violation of La.R.S. 14:44. Defendant filed a “Motion to Suppress

Statements of the Accused and any Physical Evidence Seized as Fruits of Those

Statements.” The trial court denied Defendant’s motion. For the purpose of trial, the

State severed the first-degree murder charge, and trial proceeded on that charge alone.

The State did not seek the death penalty in this case. The jury returned a verdict of

guilty of first degree murder. Defendant waived all delays and was immediately

sentenced to life imprisonment without the possibility of parole. The State dismissed

the remaining charges.

Defendant has perfected a timely appeal, wherein he alleges one assignment

of error. Defendant asserts that the trial court erred when it denied his motion to

suppress statements, his confession, and physical evidence discovered as a result of

the statements.

For the following reasons, we find that there was no error in the trial court’s

ruling or that any error was harmless and affirm Defendant’s conviction.

FACTS

On December 1, 2006, at approximately 2:50 a.m., Defendant entered the

Circle K in Sulphur, Louisiana, armed with a handgun. He took thirty-five dollars

from the till, a backpack full of liquor and cigarettes, and shot the clerk, Lucy Moore,

point blank in the back of her head. The victim died at the scene as a result of the

gunshot wound. Also at the scene was Dax Valentine, who had walked into the store

during the robbery. Defendant shot him in the arm, then forced Valentine to drive

him away from the Circle K. Shortly thereafter, he allowed Valentine to leave in his

vehicle. Valentine, who knew Defendant from childhood, went immediately to the

hospital and reported the matter to the police. Defendant was apprehended the next

day at the home of a friend, Michael Moore.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there is

one error patent.

The record does not indicate that the trial court advised the Defendant of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8. Thus, the trial court is directed to inform the Defendant of the provisions

of article 930.8 by sending appropriate written notice to the Defendant within ten

days of the rendition of this opinion and to file written proof that the Defendant

received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App.

3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

DENIAL OF MOTION TO SUPPRESS

For his sole assignment of error, Defendant asserts the trial court erred when

it denied his motion to suppress statements, a confession, and physical evidence. He

argues that he had invoked his right to remain silent until he could obtain an attorney.

He contends that he told the initial arresting officers that he desired defense counsel

but that his request was ignored by law enforcement officers.

A defendant’s right to counsel is guaranteed in LSA Const. art.
I, § 13. When counsel is requested, interrogation must cease; officials
may not reinitiate interrogation without counsel present, whether or not
the accused has consulted with his attorney. Minnick v. Mississippi, 498
U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990). If before or
during interrogation an accused asks for counsel, a valid waiver of that
right cannot be established by showing only that he responded to further
police-initiated, custodial interrogation even if he has been advised of
his rights. Such an accused is not subject to further interrogation by the
authorities until counsel is present, unless the accused himself initiates

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further communication, exchanges, or conversations with the police.
Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1884-1885, 68
L.Ed.2d 378 (1981).

State v. Williams, 01-1650, p. 7 (La. 11/1/02), 831 So.2d 835, 842-43.

The Supreme Court stated the invocation of [the right to counsel] “...
requires, at a minimum, some statement that can reasonably be construed
to be an expression of a desire for the assistance of an attorney in
dealing with custodial interrogation by the police.” McNeil [v.
Wisconsin ], 501 U.S. [171] at 178, 111 S.Ct. [2204] at 2209, 115
L.Ed.2d 158 (emphasis in original).

State v. Payne, 01-3196, pp. 9-10 (La. 12/4/02), 833 So.2d 927, 935.

A trial judge is vested with vast discretion when ruling on a motion to suppress,

and such ruling will not be overturned absent a showing of abuse of that discretion.

Furthermore, an appellate court may review the entire record, including testimony

given at trial, in addition to the testimony given at the suppression hearing, to

determine whether the trial court’s pre-trial ruling on a motion to suppress was in

error. State v. Leger, 05-011 (La. 7/10/06), 936 So.2d 108.

The following testimony was adduced at the suppression hearing. Todd Huber,

a detective with the Lake Charles Police Department, testified that he and Beau

Bartel, a deputy with the United States Marshal’s Office, went to the home of Michael

Moore because he had had prior dealings with Defendant and Moore and knew that

they were close friends. Moore lived in a trailer located next to a canal. Moore came

to the door almost immediately and indicated he was calling the police as they

arrived. Defendant was standing behind him. The two officers ordered Defendant

to the floor and cuffed him. Moore was crying and yelling for the officers not to hurt

Defendant and was getting in their way. Detective Huber stated he Mirandized

Defendant immediately and asked him if there were other persons or weapons in the

residence. Defendant answered that “he had thrown the gun in the canal.” The

detective stated that he called fellow officers, Leslie Blanchard and Gerald Thomas,

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to come to the residence to take custody of Defendant. The detective stated that

Moore was continuously getting in the way and “ranting and raving.” He recalled

that although Moore had said something about Defendant not having to say anything

until he got a lawyer, Defendant never asked for an attorney in his presence.

Deputy Beau Bartel also testified at the hearing. His testimony was essentially

the same as Detective Huber’s testimony. He stated that Moore was hollering not to

hurt Defendant and told Defendant to not “say anything to them until I get you an

attorney, or something to that effect.” However, Defendant never told them he

wanted a lawyer. Deputy Bartel testified that other than asking about whether there

were any other persons or weapons in the residence, they did not attempt to question

Defendant; their role was strictly fugitive apprehension.

Gerald Thomas, a detective with the Calcasieu Parish Sheriff’s Office, was

involved in the investigation and took custody of Defendant at the Moore residence

shortly after he was called by Detective Huber. He testified that Defendant appeared

calm. He was advised that Defendant had been Mirandized; however, he orally

Mirandized him twice after he put Defendant into his vehicle and then again with a

form after they reached the police station. At the police station, Defendant made a

video confession. The detective testified that at no time did Defendant ask for a

lawyer.

The next day, Defendant was driven back to the Moore residence so that he

could point out where he had tossed the gun into the canal. However, once there, he

advised the two transportation officers, Robert Faulk and Kenny Higgenbotham, that

he needed to talk to Detective Thomas. Detective Thomas testified that Defendant

said he had hidden the gun in an old barn located close to the canal. Detective

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Thomas stated he Mirandized Defendant again at this point because he had changed

his story. The gun was located in the barn.

Finally, Damon Frye testified that he had evoked his right to have counsel

present. He stated that he told Deputy Bartel he desired to have counsel. However,

he admitted he never repeated his invocation to anyone else at any time subsequent

to his initial declaration. When asked why, if he had evoked his right to counsel, did

he voluntarily give a confession, he responded, “I just felt like saying it.”

The trial court denied Defendant’s motion to suppress in open court, finding

that the testimony did not establish that Defendant evoked his right to have counsel

present during interrogation of any kind.

In brief, Defendant argues:

The fact that Mr. Frye had evoked his right to counsel, and had
chosen not to make a statement is also supported by the testimony of
Detective Thomas. He testified that when he took custody of Mr. Frye
from Officers Huber and Bartel, he again Mirandized Mr. Frye, and Mr.
Frye indicated that he understood his rights and that he did not wish to
make a statement. It was only after Detective Thomas let him sit in a
cold car for a while, later re-Mirandized him, and then again asked him
if he wanted to make a statement.

A review of Detective Thomas’ testimony, both at the suppression hearing and at

trial, indicates this assertion is not correct. Detective Thomas stated that after he read

Defendant his rights, Defendant indicated that he understood those rights. However,

Detective Thomas never testified Defendant stated that he did not wish to make a

statement. Conversely, he testified Defendant began to freely discuss the crime after

he indicated he understood his rights.

Defendant argues there was clear and unequivocal testimony that Defendant

evoked his rights to Deputy Bartel; therefore, citing this court, he contends that

“knowledge of a suspect’s request for counsel made to one officer is imputed to all

the other police officers involved in the case.” State v. Dotson, 98-926, p. 11

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(La.App. 3 Cir. 11/24/99), 747 So.2d 686, 693, writ denied, 99-3616 (La. 3/17/00),

756 So.2d 1142. He also points to inconsistencies in the officers’ testimonies.

Detective Thomas stated that he located the gun in the barn, and Officers Faulk and

Higgenbotham both said they had located the gun. Defendant argues: “This was not

harmless error. At trial, Mr. Frye’s statements and assistance in locating the pistol

were keystones in the state’s case.”

However, even if the trial court erred when it found that Defendant did not

evoke his right to have an attorney present during interrogation, an erroneous denial

of a motion to suppress is subject to a harmless error analysis. Leger, 936 So.2d 108.

In the current case, the error would be harmless. “To be harmless, the evidence must

not have contributed to the verdict. Factors to be considered include the importance

of the evidence to the state’s case, the presence or absence of additional

corroboration, and the overall strength of the state’s case.” State v. Swain, 04-1001,

p. 10 (La.App. 5 Cir. 3/1/05), 900 So.2d 82, 89, writ denied, 05-1333 (La. 1/9/06),

918 So.2d 1040.

The State’s case was very strong in this instance and not dependent on the

confession and the gun used to murder the victim. The State presented other

compelling evidence. Dax Valentine testified and positively identified Defendant as

the man he encountered in the Circle K with a handgun. He testified that he was a

childhood friend of Defendant. On the night of the murder, he drove to the Circle K

between 2:30 a.m. and 3:00 a.m. and interrupted a robbery in progress. Even before

he saw Defendant, he was shot in the back of his arm. Defendant grabbed him and

dragged him over to where the victim was kneeling and filling a backpack with

bottles of liquor. When she dropped a bottle, Defendant shot her. Valentine testified

he did not actually see Defendant shoot the victim as he took the opportunity of

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Defendant’s distraction to rush out of the store, terrified. Defendant followed him out

and, at gunpoint, forced Valentine to drive him away from the store.

Moreover, the State presented at trial the testimony of Patrick Walsh, the

regional loss prevention manager for Circle K stores. He described and demonstrated

the surveillance PC digital video equipment that had been installed in the Circle K.

He had with him the surveillance DVD of the night of the murder. The DVD clearly

showed Defendant, dressed in camouflage, entering the store, holding out a handgun,

confronting the victim, dragging Valentine by his arm, and showed a horrified

Valentine fleeing the store.

There was also the evidence collected from Moore’s residence discovered

pursuant to a valid and uncontested consent to search. The evidence was the

camouflage clothing exactly like the camouflage clothing Defendant was wearing in

the surveillance DVD and a backpack full of liquor bottles.

We cannot say the trial court abused its discretion when it denied Defendant’s

motion to suppress the evidence. The only evidence indicating that Defendant may

have evoked his right to have counsel present was his own self-serving testimony.

However, even without his video taped confession and the handgun, the evidence –

Valentine’s eyewitness testimony and the DVD which clearly showed Defendant with

a handgun, corroborating Valentine’s testimony, together with the clothing and

backpack – was sufficiently strong that the jury could have convicted him of first

degree murder beyond a reasonable doubt.

DECREE

For foregoing reasons, the Defendant’s conviction for first degree murder is

affirmed. The trial court is directed to inform the Defendant of the provisions of

La.Code Civ.P. art. 930.8 by sending appropriate written notice to the Defendant

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within ten days of the rendition of this opinion and to file written proof that the

Defendant received the notice in the record of the proceedings.

AFFIRMED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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