STATE OF LOUISIANA VERSUS READO NARGO A/K/A RENALDO NARGO

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-779

STATE OF LOUISIANA

VERSUS

READO NARGO
A/K/A RENALDO NARGO

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 19287
HONORABLE JUDGE ERIC R. HARRINGTON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney – 10th Judicial District
P. O. Box 838
Natchitoches, LA 71458-0838
Telephone: (318) 357-2214
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
Telephone: (337) 436-2900
COUNSEL FOR:
Defendant/Appellant – Renaldo Nargo a/k/a Reado Nargo

Reado Nargo
a/k/a Renaldo Nargo
Wolf #4
Louisiana State Prison
Angola, LA 70712
Defendant/Appellant

THIBODEAUX, Chief Judge.

Defendant Reado Nargo was charged by grand jury indictment with

the second degree murders of Johnny L. Brimzy (John Brimzy) and Stanley J.

Brimzy in violation of La.R.S. 14:30.1. Nargo pled not guilty to both counts.

After a trial by jury, he was found guilty of the second degree murder of John

Brimzy and guilty of the responsive verdict of manslaughter for the killing of

Stanley Brimzy. Nargo was sentenced to life imprisonment at hard labor without

the benefit of probation, parole, or suspension of sentence for the murder of John

Brimzy, and forty years at hard labor for the manslaughter of Stanley Brimzy, to

run consecutively. His Motion to Reconsider Sentence was denied.

Nargo now appeals his convictions, arguing that the trial court erred

when it determined the recorded and non-recorded statements allegedly made by

Nargo were freely and voluntarily made, and thus admissible; that evidence was

improperly published to the jury prior to their authentication, identification, or

admission into evidence, therefore making it unavailable for appellate review; that

trial counsel rendered ineffective assistance of counsel by failing to object to the

publishing of this evidence; and that the trial court erred in failing to assure that

discussions and arguments of counsel made during sidebar proceedings were

recorded and preserved for appellate review.

After the record was lodged in this court, appellate counsel filed two

motions to supplement the appellate record, which were granted. In the first

motion to supplement, appellate counsel requested that this court order the court

reporter to prepare a transcript of three bench conferences, and in the second, a

transcription of statements made by Nargo and played for the jury that was not

admitted into evidence. For the following reasons, we affirm.

I.

ISSUES

We must determine:

(1) whether the trial court erred in concluding that
Nargo knowingly, intelligently, and voluntarily
gave the recorded and non-recorded statements
after waiving his rights;

(2) whether the trial court erred in considering
recordings which had not been admitted into
evidence at the admissibility hearing in reaching
its decision that the statements made by Nargo
were admissible at trial;

(3) whether the trial court erred in publishing the
recorded statements to the jury prior to their
authentication or admission into evidence;

(4) whether trial counsel’s performance fell below that
guaranteed by the Sixth Amendment; and

(5) whether the trial court erred in failing to assure
sidebar discussions were recorded and preserved,
resulting in the denial of Nargo’s constitutional
right on appeal.

II.

FACTS AND PROCEDURAL HISTORY

In the early morning of January 26, 2012, Detective Michael Wilson

received a call about a shooting in Campti, Louisiana. Upon arrival at the scene,

Detective Wilson found the body of Stanley Brimzy in the road in front of

Claudine Caldwell’s trailer home (Nargo’s girlfriend). The body of a second

victim, John Brimzy, was found later that morning approximately 100 yards away

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from the trailer home. It was established that Stanley Brimzy was killed by a

single gunshot to the head, and that John Brimzy suffered three gunshot wounds to

the head.

Caldwell testified that she was at work when she received a call from

Nargo about a break-in at her home. Caldwell returned home, and Nargo informed

her that his AK-47 firearm had been stolen, and that he believed Stanley and John

Brimzy were responsible. Soon thereafter, Stanley and John Brimzy approached

Caldwell’s trailer home in a truck. Caldwell testified that she heard Nargo ask

Nathan Davis, who was also present at the scene, where “the heat” (pistol) was.

Davis testified that he gave Nargo a pistol. Sylvester Millage, also present at the

scene, testified that he also saw Nargo in possession of the pistol given to him by

Davis. Caldwell, Davis, and Millage each testified that they witnessed Nargo

approach Stanley while holding the pistol. Moments later, Caldwell heard a

gunshot, and saw John Brimzy flee from the truck. Sylvester testified that he saw

Nargo running behind John Brimzy and shooting at him. John Brimzy was later

found dead across the nearby railroad tracks. After the killings, Nargo was brought

in for questioning by Detective Wilson, at which time he admitted to killing both

victims. During questioning, recorded and non-recorded statements were given.

III.

LAW AND DISCUSSION

Failure to Admit the Recordings into Evidence

Nargo first contends that the trial court erred in considering recordings

which had not been admitted into evidence at the admissibility hearing in reaching

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its decision that the statements made by Nargo were voluntary and, therefore,

admissible at trial. We disagree.

In State v. Lloyd, 48,914 (La.App. 2 Cir. 1/14/15), 161 So.3d 879, writ

denied, 15-307 (La. 11/30/15), 184 So.3d 33, the second circuit found that it could

consider on appeal audio recordings that were played for the jury but not admitted

into evidence. The defendant argued that while the recordings were played in

court, they should not have been considered by the trial court. Id. The Lloyd court

offers us guidance, and states the following:

At trial, the prosecution played recordings of Mrs.
Lloyd’s call to the police and the defendant’s interview
with Detective Strickland on the night the offense
occurred. Defendant’s counsel did not object to the use
of the recordings at trial. With regard to the defendant’s
statement to Detective Strickland, the record is clear that
defense counsel wanted the recording played in open
court so the trial court could hear it. However, the
prosecution failed to formally introduce the recordings
into evidence after they were played in the trial court and
they were not included in the record on appeal. In this
court defense counsel filed a motion to supplement the
record, noting the absence of the recordings in the record.

Id. at 892. The second circuit found that since the recordings were played in open

court without objection by the defendant, the recordings were tacitly admitted and

the trial court did not err in considering them. Lloyd, 161 So.3d 879. See State v.

Rodriguez, 554 So.2d 269 (La.App. 3 Cir. 1989), writ granted in part and

remanded, 558 So.2d 595 (La.1990). 1

During the State’s questioning of Detective Wilson, a hearing was

held outside of the jury’s presence regarding the admissibility of inculpatory

statements made by Nargo. After hearing testimony and argument, the trial court

1
A state trooper testified about the contents of her report, which was not admitted into
evidence. The defendant failed to object at trial, and the appellate court found that any right to
attack the conviction based on the alleged error had been waived.

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found that Nargo’s statements were freely and voluntarily given after being fully

advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1966). Subsequently, the State played the recording of Nargo’s statements to the

jury, but did not seek to admit the recording into evidence. As previously stated,

no objection was made by the defense regarding this omission. Consequently,

Nargo’s statements were properly considered by the trial court in ruling on the

voluntariness of those statements.

Preservation for Appellate Review

Nargo further argues that because the recordings were not properly

admitted into evidence, they are unavailable for review by either appellate counsel

or the appellate court, thus denying him full appellate review.

While this court has previously held in State in the Interest of J.C.R.,

14-1146 (La.App. 3 Cir. 3/4/15), 157 So.3d 1284, that exhibits played during an

adjudication hearing but not admitted into evidence were not preserved for

appellate review, the present appeal is distinguishable. In J.C.R., the trial record

would have been incomplete without the audio exhibits played during the

adjudication hearing. Here, because transcripts of the statements are available, the

record is complete with no indication of prejudice. Moreover, Nargo’s trial

counsel used the transcript at length in his cross-examination of Detective Wilson,

and it was the defense that filed the motion to supplement the record such that the

transcript is now part of the record on appeal. Accordingly, and in following

Lloyd, the record is complete, as the statements were tacitly admitted into

evidence.

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Publication of the Statements to the Jury

Nargo next asserts that it was improper for the jury to consider his

statements since they were not properly authenticated and formally introduced into

evidence. He contends that even though Detective Wilson testified that he had

listened to the recordings, he never identified the voice on the recordings or

acknowledged that they were recordings he had made. Because we have

concluded that Nargo’s recorded statements were tacitly admitted into evidence,

we shall consider only the issue of authenticity.

While defense counsel objected to the admissibility of the substance

of Nargo’s statements based on their alleged involuntariness, which will be later

discussed, there was no contemporaneous objection based on lack of authenticity.

Defense counsel also did not object to the failure to formally admit the recording

into evidence. When the statements were referenced later in Detective Wilson’s

testimony, defense counsel asked how the statements were marked in evidence.

When the State informed defense counsel that the statements were not marked, but

were part of the transcript, defense counsel failed to object.

Further, we find there was sufficient evidence elicited during the

testimony of Detective Wilson to authenticate the statements. In particular, certain

time stamps on the recordings were referenced at the admissibility hearing.

Additionally, defense counsel was provided the audio recording during the

discovery process and well in advance of trial. When the recording was played for

the jury, the State asked Detective Wilson if the tape was the initial recording of

the conversation he had with Nargo. Detective Wilson confirmed that it was.

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Accordingly, we find the trial court properly considered recordings

which had not been formally admitted into evidence, the recorded statements were

properly preserved for appellate review, and were properly published to the jury.

Ineffective Assistance of Counsel

Because defense counsel did not contemporaneously object to the

authenticity of the recorded statements when published to the jury, Nargo is

precluded from raising these alleged errors on appeal unless it can be determined

that defense counsel was ineffective for failing to object. Nargo now alleges

ineffective assistance of counsel.

“The standard of review on a claim of ineffective assistance of

counsel is a deficiency in counsel’s performance giving rise to a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Teeter, 504 So.2d 1036, 1040

(La.App. 1 Cir. 1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 (1984)).

A criminal defendant is guaranteed the effective
assistance of counsel. United States Sixth Amendment;
La. Const. art. I, § 13; Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Washington, 491 So.2d 1337 (La. 1986). To establish a
claim for ineffective assistance, a defendant must show
that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional
norms; and, that counsel’s professional errors resulted in
prejudice to the extent that it undermined the functioning
of the adversarial process and rendered the verdict
suspect. Strickland v. Washington, supra; Lockhart v.
Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed. 2d 180
(1993).

A claim of ineffectiveness is generally relegated to
post-conviction, unless the record permits definitive
resolution on appeal. E.g., State v. Prudholm, 446 So.2d

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729 (La.1984). However, when the record is sufficient
for review, this Court will reach the merits of complaints
about counsel’s performance and grant relief when
appropriate. E.g., State v. Hamilton, 92-2639 (La.
7/1/97), 669 So.2d 29, 32-35.

State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157, reversed

on other grounds, 02-2793 (La. 5/25/04), 875 So.2d 37.

Nargo maintains a new trial is warranted because it is impossible to

determine what effect, if any, the recordings had on the jury’s verdict. Appellate

counsel argues that Detective Wilson’s testimony regarding Nargo’s waiver of his

rights was inconsistent. Detective Wilson testified on direct examination that

before the second recording he did not re-read Miranda rights to Nargo or obtain a

second waiver. On cross-examination, however, he testified that he did discuss

Miranda rights at the beginning of the second recording. Appellate counsel also

argues that the first recording clarifies that Nargo’s signature on the waiver of

rights form should not have been considered a voluntary waiver of his right to

remain silent, but rather an acknowledgment that he had been read the waiver

section. Thus, without the recordings, the court was provided conflicting

testimony.

Because we find appellate counsel fails to sufficiently prove Nargo

was prejudiced by defense counsel’s alleged errors, it is unnecessary to determine

if defense counsel in fact erred in failing to make these objections. We conclude

there is no merit to the ineffective assistance of counsel claim.

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Voluntariness of the Statements

Nargo also maintains that the trial court erred in finding that both his

recorded and non-recorded statements given to detectives were freely and

voluntarily made, and thus were inadmissible.

In State v. Fisher, 97-1133, p. 4 (La. 9/9/98), 720 So.2d 1179, 1182,

the supreme court explained:

A trial judge’s ruling on a motion to suppress a
confession is entitled to deference, but only if it is
supported by the evidence. State v. Carter, 94-2859, p.
24 (La. 11/27/95); 664 So.2d 367, 385. A reviewing
court may consider the evidence presented at trial in
addition to the evidence presented at the hearing on the
motion to suppress. State v. Green, 94-0887, p. 11 (La.
5/22/95); 655 So.2d 272, 280.

Furthermore, in State v. Blank, 04-204, p. 10 (La. 4/11/07), 955 So.2d

90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494 (2007), the supreme court

stated:

A trial court’s finding as to the free and voluntary nature
of a statement carries great weight and will not be
disturbed unless not supported by evidence. State v.
Benoit, 440 So.2d 129, 131 (La.1983); State v. English,
582 So.2d 1358, 1364 (La.App. 2nd Cir. 1991), writ
denied, 584 So.2d 1172 (La.1991). Credibility
determinations lie within the sound discretion of the trial
court and its rulings will not be disturbed unless clearly
contrary to the evidence. [State v. Vessell, 450 So.2d
938, 943 (La. 1984)].

Detective Wilson testified that he brought Nargo in for questioning

and advised him of his Miranda rights. Nargo thereafter signed a written Miranda

warning, indicating that he had read and understood his rights. He additionally

signed a portion of the form which indicated that he waived his rights. The

following exchange occurred:

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DETECTIVE WILSON: Before we ask any questions.
You must understand your rights. You have the right to
remain silent. Anything you say can be used against you
in a court of law. You have the right to talk to a lawyer,
and have him present with you before we ask you any
questions and to have a lawyer with you during
questioning. If you cannot afford a lawyer, one will be
appointed for you before questioning, if you wish. If you
decide to answer questions now, without a lawyer
present, you still have the right to stop (inaudible) at any
time. You also have the right to stop (inaudible) at any
time (inaudible), okay?

MR. NARGO: (No response recorded).

DETECTIVE WILSON: Are you all right?

MR. NARGO: (Crying).

DETECTIVE WILSON: Okay. I need your signature
right here, Mr. Nargo stating I read you these rights, and
you understand them. (Inaudible) there by that X. Okay,
and go ahead and continue to the bottom of the page
which is the Waiver of the Rights. (Inaudible) you’ve
read the statement of your rights, and you understand
what your rights are. (Inaudible) make a statement and
answer questions. You do not want a lawyer at this time.
You understand and know what you are doing. No
promises or threats have been made to you. No pressure
or coercion of any kind has been used against you. Is
that correct?

MR. NARGO: (No response recorded).

DETECTIVE WILSON: Okay…(inaudible) signature
now… (inaudible) … sign that. Just confirming that I
read you the waiver of your rights.

MR. NARGO: (Inaudible).

DETECTIVE WILSON: Do what now?

MR. NARGO: (Inaudible) people. I ain’t answering no
questions till my people get here (inaudible), man
(inaudible).

DETECTIVE WILSON: Okay, you say, you’re not
going to answer any questions until your people get
there, right?

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MR. NARGO: (Inaudible).

DETECTIVE WILSON: Okay.

MR. NARGO: I need that favor man. (Inaudible). . .
please man. Please. . . cause once I do this, I ain’t gonna
be wanting to sit in here no longer man.

When Nargo requested to speak with his “people,” Detective Wilson

immediately ceased questioning and allowed him to speak with Caldwell. After

approximately ten minutes, Nargo indicated that he wished to continue speaking

with Detective Wilson. From this point, Nargo never indicated that he did not

wish to talk or that he wanted a lawyer. Detective Wilson testified that he did not

threaten or coerce Nargo at any point during questioning, and that Nargo spoke

with him freely and voluntarily. On cross-examination at the admissibility hearing,

Detective Wilson testified that although Nargo was crying at the time, he signed

the rights form freely. He also explained that Nargo was not consistently crying

throughout questioning. Although he did not ask Nargo to sign another waiver

between the pausing of the first recording and the start of the second recording,

Nargo was once again advised of his Miranda warnings at the start of the second

recording. Approximately one hour passed between the two recordings.

Nargo argues that his initial signing of the Miranda form did not

equate to a knowing and voluntary waiver of his rights because he was crying at

the time and because he refused to speak with police until he was able to speak

with his family. This, Nargo argued, indicated that he was exercising his right to

remain silent. He, thus, concludes that the inculpatory statements given to

Detective Wilson after he exercised his right to remain silent should not have been

admitted. Further, Nargo argues that there was no waiver of his right to remain

silent until the second recorded statement, and that any statement made before that

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one, when he acknowledged he was waiving his right to remain silent, was

inadmissible. Appellate counsel maintains that although Nargo signed the waiver

form, this was not a waiver of his rights, but instead an acknowledgment that he

had received and read the form.

We find, however, that because Nargo signed the Miranda form

during the first recording and had been advised of his Miranda warnings at the

start of his second statement, that his statements were freely made. While Nargo

makes the argument that he should have been advised of his rights once more prior

to the unrecorded oral statement in which he confessed to killing both victims, we

find jurisprudence does not require that Miranda warnings be repeated each time a

suspect is questioned, absent a showing of coercion by police. See State v.

Moseley, 587 So.2d 46 (La.App. 2 Cir.), writ denied, 589 So.2d 1006 (La.1991).

Although Nargo cried during questioning, we find no indication that

this emotional distress was so great that it overcame the free and voluntary nature

of Nargo’s confession. See State v. Weeks, 345 So.2d 26 (La.1977) (where the

court found that despite defendant’s contention that the statements were

involuntary because she was upset and stressed, the record amply supported a

finding that the defendant was sufficiently in possession of her mental faculties to

make the statements voluntary).

We further find that although Nargo requested to speak with “his

people,” consequently interrupting questioning, this was not necessarily an

invocation of his right to remain silent which required another reading of his

Miranda rights prior to subsequent questioning. However, even if Nargo’s request

did constitute the invocation of his right to remain silent, this invocation does not

permanently bar officers from reinitiating contact/questioning. See State v.

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Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98), 709 So.2d 213, writ denied, 98-582

(La. 7/2/98), 724 So.2d 202. The appropriate reinitiation of contact depends on

who initiates the further questioning, the time delay
between the original request and subsequent
interrogation, whether Miranda warnings were given
before each separate interrogation, whether waiver of
rights forms were signed, and whether pressures were
asserted on the accused by the police between the time he
invoked his right and the subsequent interrogation.

Id. at 218. In the present case, however, there is no indication that Detective

Wilson pressured Nargo to speak with him after he spoke with Caldwell.

According to Detective Wilson’s testimony, Nargo voluntarily resumed talking to

Detective Wilson and offered a confession without prompting. Nargo also

reaffirmed that he was advised of his Miranda rights at the start of the second

recording.

While the transcript reveals Nargo’s lack of response when first

advised of his Miranda rights, we find a lack of response does not necessarily

indicate a lack of understanding. See State v. Pennington, 12-804 (La.App. 1 Cir.

2/15/13) (unpublished opinion), writ denied, 13-838 (La. 11/1/13), 125 So.3d 420.

There is no indication in the transcript or in Detective Wilson’s testimony that

Nargo lacked an understanding of any of his rights. There is additionally no

indication that Nargo was under any duress at the time in which he signed the

rights form or at any other time during his questioning.

Accordingly, we find the trial court did not err in finding Nargo’s

statements were freely and voluntarily given.

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Failure to Record Sidebar Conversations

Nargo finally contends that his constitutional right to a full appeal has

been denied by the trial court’s failure to assure that discussions and arguments

made by trial counsel during sidebar proceedings were recorded and preserved for

appellate review. Appellate counsel specifically cites to three unrecorded bench

conferences. We find this argument lacks merit.

Louisiana Code of Criminal Procedure Article 843 requires the trial

court to “record all of the proceedings, including the examination of prospective

jurors, the testimony of witnesses, statements, rulings, orders, and charges by the

court, and objections, questions, statements, and arguments of counsel.”

In State v. Pinion, 06-2346, pp. 7-8 (La. 10/26/07), 968 So.2d 131,

134-35, the supreme court concluded that “the failure to record bench conferences

will ordinarily not affect the direct review process when the record suggests that

the unrecorded bench conferences had no discernible impact on the proceedings

and did not result in any specific prejudice to the defendant.” See State v.

Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120

S.Ct. 220 (1999). “The Court has instead conducted a case-specific inquiry to

determine whether the failure to record the conferences results in actual prejudice

to the defendant’s appeal.” Pinion, 968 So.2d at 134.

Nargo first notes that an unrecorded bench conference occurred

during opening statements. Later, however, the trial court stated for the record that

defense counsel no longer wanted to call attention to the issue, and simply

requested a jury instruction that opening and closing statements are not evidence.

The State contends this resolution did concern the unrecorded bench conference

during opening statements.

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The second unrecorded bench conference occurred at the request of

defense counsel during the testimony of a witness. Nargo maintains that following

the bench conference the court took a recess, excusing the jurors. Following their

dismissal, the judge advised the court observers to refrain from showing emotion

during the display of evidence. Nargo offers no further comment or argument as to

this bench conference.

Finally, the third bench conference occurred during the State’s

questioning of Caldwell. Nargo notes that when questioning resumed after the

bench conference, the prosecution continued to ask Caldwell about what she told

police. Caldwell recounted her knowledge of what transpired after Stanley Brimzy

was shot. Once more, Nargo offers no further comment or argument as to this

bench conference.

Nargo maintains the contents of the non-recorded bench conferences

specifically mentioned were necessary for appellate counsel, who was not trial

counsel, to properly review the case for potential errors. Nargo fails to

demonstrate, however, what discernible impact these bench conferences had on his

trial, and, thus, there is not sufficient prejudice to warrant a new trial. This

assignment of error lacks merit.

IV.

ERRORS PATENT

We have reviewed this matter for errors patent. We find none.

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V.

CONCLUSION

Accordingly, we affirm Defendant’s convictions for the second degree

murder of Johnny Brimzy and for the manslaughter of Stanley Brimzy.

AFFIRMED.

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