State of Louisiana v. David Ray Newsom

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17- 580

STATE OF LOUISIANA

VERSUS

DAVID RAY NEWSOM

**********

SUPERVISORY WRIT FROM THE THIRTY-FIRST JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON DAVIS,
DISTRICT COURT DOCKET NO. CR-367-16
HONORABLE STEVE GUNNELL, JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery,
Judges.

Gremillion, J., dissents and assign written reasons.

WRIT GRANTED AND MADE PEREMPTORY.

Adam P. Johnson
The Johnson Firm
910 Ford Street
P. O. Box 849
Lake Charles, Louisiana 70602
(337) 433-1414
COUNSEL FOR DEFENDANT/APPLICANT:
David Newsom

Bennett R. LaPoint
Assistant District Attorney
P. O. Box 1388
Jennings, Louisiana 70546
(337) 824-1893
COUNSEL FOR RESPONDENT:
State of Louisiana

CONERY, Judge.

This is a pre-trial writ filed by the State of Louisiana. Trial is currently

scheduled for September 14, 2017.

Defendant was arraigned on August 8, 2016, for operating a vehicle while

intoxicated, a violation of La.R.S. 14:98. On November 17, 2016, Defendant filed

a “Motion to Suppress Evidence,” a “Supplemental Motion to Suppress Evidence

with Incorporated Memorandum,” and a “Notice of Objection to the Introduction

of the State’s Crime Lab Certificates into Evidence as Prima Facie Proof of the

Assertions Contained Therein.” Hearings were held on May 11 and 15, 2017, to

address all the issues raised in the above three pleadings. The trial court granted

Defendant’s motions to suppress the blood/alcohol results and the statements made

by defendant to the investigating Louisiana state troopers.

The State of Louisiana now seeks review of the trial court’s rulings. The

issues raised are whether Defendant’s verbal consent for the blood/alcohol test was

valid and whether the statements were freely and voluntarily made. For the

following reasons, we find that the trial court erred when it granted Defendant’s

motions to suppress the evidence. Accordingly, this court grants and makes

peremptory the State’s writ, vacates the trial court’s ruling, and remands the matter

for further proceedings.

FACTS

On May 6, 2016, Defendant was involved in a single vehicle accident in

Jefferson Davis Parish. He was injured and subsequently taken by a medical

helicopter to a hospital in Lafayette. At the hospital, Defendant gave statements to

Louisiana State Trooper John Sims. Defendant also consented to a blood/alcohol

test that showed he was over the legal limit. Defendant was arrested and charged

with operating a vehicle while intoxicated.

EVIDENCE ADDUCED AT MAY 11, 2017 MOTION HEARING

John Sims and Scott O’Connell, troopers with the Louisiana State Police,

testified at the hearing, and several documents were introduced by the State and

Defendant, which are attached as exhibits to the State’s writ application:

State’s Exhibit 1: Arrestee’s Rights Form, Rights Relating to
Chemical Test for Intoxication.

State’s Exhibit 2: Notice to Withdraw Blood for Chemical Test for
Intoxication.

State’s Exhibit 3 and Defense’s Exhibit 3: “Optional Test.”

State’s Exhibit 4: “Initial Observation” and the traffic citation.

State’s Exhibits 5 and 6: Blood/alcohol test kit containing “Consent
Form.”

Defense’s Exhibit 1: “Certificate of Arrest.”

Defense’s Exhibit 2: “Certificate of Authenticity” and the ambulance
service records.

Trooper Sims testified that he was requested by Trooper O’Connell, who

remained at the scene of the accident, to go to the hospital and interview Defendant

and to begin the necessary paper work. Trooper Sims stated that when he first

encountered Defendant, he could smell the odor of alcohol. Defendant’s eyes were

bloodshot and his speech was slurred. Trooper Sims determined there was

probable cause to arrest Defendant for operating a vehicle while intoxicated. The

trooper testified that Defendant was conscious and coherent. Trooper Sims stated

he gave Defendant the Miranda warnings prior to questioning him. The trooper

contended that Defendant gave him verbal consent to do a blood/alcohol test and

that Defendant acknowledged the Miranda rights he was giving up and voluntarily

admitted he had three glasses of crown and coke prior to driving. The trooper

2

stated he would not have had blood drawn if Defendant had not consented but

would have obtained a warrant.

Trooper Sims admitted that when he arrived at the hospital he was not

advised as to the extent of Defendant’s injuries. He agreed, however, that

Defendant had significant injuries. He described the observable injures being to

Defendant’s head, face, neck, and back. He was not aware of any medications the

hospital might have administered to Defendant. Although the trooper testified that

he wrote in Defendant’s answers to the questions on State’s Exhibit 3, “Optional

Test,” he did not remember if he had made the note on the form that stated

Defendant was incoherent. Later, however, the trooper explained that when he

wrote “incoherent,” he meant that while Defendant could understand the questions,

he had difficulty understanding what Defendant was saying. Trooper Sims agreed

that on any of the forms that required Defendant’s signature, Defendant did not

sign the forms. The trooper contended that although Defendant was unable to sign

the forms, he gave verbal consent. When asked why Defendant could not sign the

forms, the trooper responded only that Defendant was injured.

Senior Trooper O’Connell arrived at the hospital later in the morning. He

testified that he spoke with Defendant and asked him to relate what occurred that

caused the accident. The trooper stated that Defendant said he was driving his

passenger home from a party. Trooper O’Connell said that Defendant was

conscious. He noted that he could smell alcohol and that Defendant’s speech was

slurred, but the trooper was not sure if Defendant’s bloodshot eyes were caused by

alcohol or by the accident. The trooper testified that at the time he spoke with

Defendant he was unaware that Defendant’s face, jaw, and neck had multiple

fractures or of what medication may have been given to Defendant at the hospital.

3

The State attempted to call the nurse who drew Defendant’s blood for the

blood/alcohol test. The State advised the trial court it desired to show that a

qualified person had drawn Defendant’s blood as required by La.R.S. 32:664.

However, the trial court ruled that the nurse’s testimony regarding her

qualifications were irrelevant to a motion to suppress. The State and Defendant

agreed.

Finally, Defendant submitted the EMT’s report and noted for the trial court’s

consideration where on the EMT’s record the notation was made that Defendant

suffered “Altered Level of Consciousness” and that he was not able to sign the

consent form for treatment because of “[n]eurological condition limits ability to

sign.”

On May 11, 2017, at the hearing, the trial court granted Defendant’s motions

to suppress the blood/alcohol results, as follows:

I mean, the officers were - - were very honest and they stated,
you know - - O’Connell didn’t - - you know, he was very honest and
so was Officer Sims. They were very honest in their statements, and
Officer Sims said I don’t remember what happened.

But concerns the Court - - and the officers were not aware of
the - - of the level of unconsciousness of the defendant at the time of
the accident, okay, and that because of neurological reasons he
couldn’t sign, that he had injuries to the mouth and face which Officer
Sims noted. Neither officer knew what medication the defendant was
on at the time of the voluntary consent form. But those are all
questions to me, and based on that, I - - I’ve got to say the consent
form is not free and voluntary. This should have been a warrant from
- - the judge would have signed a warrant and got the permission to
draw the blood, okay, under this type of an injury, all right.

On May 15, 2017, the trial court reconvened the suppression hearing for the

purpose of granting Defendant’s motion to suppress the statements he made for the

above stated reasons and further stated that Defendant “was mirandized prior to

4

giving his consent which I said was not free and voluntary. Therefore, I cannot

find that he fully understood the Miranda right and that [sic] he was waiving.”

ANALYSIS

The issues before this court are whether Defendant fully understood his

Miranda rights and therefore knowingly and intelligently waived his rights, and

whether his consent for a blood/alcohol test was freely and voluntarily given. In

the State’s Brief in support of the writ, the State argues that the trial court erred

when it granted Defendant’s motions to suppress the results of the blood/alcohol

test and the statements made to the two troopers as follows:

[T]he testimonial evidence of the State Troopers prove that the
defendant Newson was conscious, coherent, and able to understand
waiving his rights, and give intelligent answers to all of the questions
posed to him. The only evidence introduced by the defense to refute
their conclusion on consent and waiver were the Acadian Ambulance
records indicating that the defendant was in an “altered level of
consciousness” and “alert but confused” at 01:27 hours,
approximately 3 hours before he gave Trooper Sims consent to
draw blood at 03:41 hours. There was no evidence introduced to
prove that the defendant was unconscious or unable to give consent at
the time he was met by the troopers at the hospital.

(Emphasis added.)

In his motion to suppress the blood/alcohol results, Defendant argued that

the Trooper should have applied for a warrant to conduct the blood/alcohol test

because of Defendant’s diminished mental capacity caused by his injuries.

Defendant further argued that for the same reason he did not knowingly and

intelligently waive his privilege against self-incrimination. Accordingly, the

statements Defendant made and the blood/alcohol test should be suppressed.

Defendant repeats those arguments in opposition to the State’s writ.

5

In State v. Thomas, 02-471, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137,

1139-40, writ denied, 02-2920 (La. 4/21/03), 841 So.2d 789 (citations omitted),

this court discussed the trial court’s ruling on a motion to suppress and stated:

Unless the trial court’s conclusions are not supported by the evidence
or there exists a clear abuse of discretion, an appellate court should
not overturn the trial court’s ruling. In other words, the appellate court
will give the trial court’s determination great weight and will not set
aside the trial court’s ruling unless clearly mandated by a
preponderance of the evidence.

The Fourth Amendment to the United States Constitution and Article 1, § 5

of the Louisiana Constitution protect people against unreasonable searches and

seizures. A search made without a warrant is considered unreasonable unless that

search can be justified by one of the narrowly drawn exceptions to the warrant

requirement. State v. Cavalier, 14-579 (La.App. 4 Cir. 6/19/15), 171 So.3d 1117,

writ denied, 15-1374 (La. 9/6/16), 205 So.3d 914. One of the specifically

established exceptions to the warrant requirement is a search conducted pursuant to

consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 204 (1973); State v.

Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281

(1985). Oral consent is valid. State v. Hudnall, 39,723 (La.App. 2 Cir. 5/11/05),

903 So.2d 605. On a motion to suppress, a defendant has the burden of proving the

grounds for his motion, “except that the state shall have the burden of proving the

admissibility of a purported confession or statement by the defendant or of any

evidence seized without a warrant.” La.Code Crim.P. art. 703(D).

Louisiana Revised Statutes 32:661 provides in pertinent part:

A. (1) Any person, regardless of age, who operates a motor
vehicle upon the public highways of this state shall be deemed to have
given consent, subject to the provisions of R.S. 32:662, to a chemical
test or tests of his blood, breath, urine, or other bodily substance for
the purpose of determining the alcoholic content of his blood, and the
presence of any abused substance or controlled dangerous substance
as set forth in R.S. 40:964 in his blood if arrested for any offense
6

arising out of acts alleged to have been committed while the person
was driving or in actual physical control of a motor vehicle while
believed to be under the influence of alcoholic beverages or any
abused substance of controlled dangerous substance as set forth in
R.S. 40:964.

....

C. (1) When a law enforcement officer requests that a person
submit to a chemical test as provided for above, he shall first read to
the person a standardized form approved by the Department of Public
Safety and Corrections. The department is authorized to use such
language in the form as it, in its sole discretion, deems proper,
provided that the form does inform the person of the following:

(a) His constitutional rights under Miranda v. Arizona.

(b) That his driving privileges can be suspended for refusing to
submit to the chemical test.

(c) That his driving privileges can be suspended if he submits
to the chemical test and such test results show a blood alcohol level of
0.08 percent or above or, if he is under the age of twenty-one years, a
blood alcohol level of 0.02 percent or above.

(d) That his driving privileges can be suspended if he submits
to the chemical test and the test results show a positive reading
indicating the presence of any controlled dangerous substance listed in
R.S. 40:964.

(e) The name and employing agency of all law enforcement
officers involved in the stop, detention, investigation, or arrest of the
person.

(f) That refusal to submit to a chemical test after an arrest for
an offense of driving while intoxicated if he has refused to submit to
such test on two previous and separate occasion of any previous such
violation is a crime under the provision of R.S. 14:98.2 and the
penalties for such crime are the same as the penalties for first
conviction of driving while intoxicated.

(2) In addition, the arresting officer shall, after reading said
form, request the arrested person to sign the form. If the person is
unable or unwilling to sign, the officer shall certify that the arrestee
was advised of the information contained in the form and that the
person was unable to sign or refused to sign.

7

Blood/alcohol test

Defendant argued that the Louisiana implied consent laws, “as it relates

specifically to blood draws, has been ruled unconstitutional by the United States

Supreme Court,” by Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552 (2013)

and Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016). The State

asserts in brief that the trial court erroneously based its decision on the above two

cited United States Supreme Court cases.

In McNeely, the Supreme Court held that the natural metabolization of

alcohol in the bloodstream did not present a per se exigency that justified an

exception to the Fourth Amendment requirement for a warrantless blood testing.

The State is not arguing a “per se exigency” was involved in this case, but rather

that the consent defendant gave for the blood drawn was voluntary. The State

further argues that Birchfield is inapposite to the current case because in Birchfield

the defendant refused to give consent. There were three defendants in Birchfield.

One of the defendants, Mr. Beylund, consented to the blood/alcohol test because he

was told he did not have the right to refuse and if he did, his license would be

suspended and he would be fined in an administrative proceeding. In Birchfield,

136 S.Ct. at 2186, the Supreme Court, while addressing how the “search-incident-

to-arrest” doctrine applied to blood tests, stated:

Unlike the other petitioners, Beylund was not prosecuted for
refusing a test. He submitted to a blood test after police told him that
the law required his submission, and his license was then suspended
and he was fined in an administrative proceeding. The North Dakota
Supreme Court held that Beylund’s consent was voluntary on the
erroneous assumption that the State could permissibly compel both
blood and breath tests. Because voluntariness of consent to a search
must be “determined by the totality of all the circumstances,”
Schneckloth, supra, at 227, 93 S.Ct. 2041 we leave it to the state court
on remand to reevalutate Beylund’s consent given the partial
inaccuracy of the officer’s advisory.

8

The Supreme Court noted specifically that “[o]ur prior opinions have

referred approvingly to the general concept of implied consent laws that impose

civil penalties and evidentiary consequences on motorists who refuse to comply.”

Id at 2185. The Supreme Court, however, further stated that “motorists cannot be

deemed to have consented to submit to a blood test on pain of committing a

criminal offense.” Id. at 2186.

The form Trooper Sims read to Defendant indicated that he had the right to

refuse the test but if he did, he would be fined and his license would be revoked for

a year. The form also indicated that a refusal could constitute a crime. If

Birchfield is retroactively applicable to Defendant’s case, the State suggests that

the good faith exception to the exclusionary rule applies, as discussed in depth

below. However, while the trial court acknowledged the holding in Birchfield, the

trial court did not indicate that it relied on Birchfield and McNeely to support its

ruling to exclude the evidence.

In the current case, Defendant’s primary argument was that because his

injuries resulted in diminished mental capacity, he was not capable of giving

consent; thus, the State should have obtained a warrant. The trial court’s May 11,

2017, ruling was based on Defendant’s alleged inability to consent due to the

extent of the injuries as described during the suppression hearing and the fact that

the troopers both testified that they did not know what medications, if any, were

administered to Defendant at the hospital. The trial court further noted that while

Defendant was deemed incapable of signing any of the forms giving consent for

the blood/alcohol test or indicating his understanding and acknowledgement of the

wavier of his Miranda rights with his signature, there was no explanation of why

he was unable to sign the forms. The only explanation pointed out by Defendant

9

was the notation in the EMT’s records that Defendant suffered an altered level of

consciousness three hours earlier at the scene of the accident and that a

neurological condition limited his ability to sign.

While the State had the burden of proving the admissibility of the evidence,

Defendant had the burden of proving the grounds for his motion to suppress. We

find that Defendant failed to present any evidence that because of his injuries, his

consent was not valid or that he suffered any sort of diminished capacity or

inability to understand and acknowledge the rights that he was giving up. While

Defendant presented the EMT’s records, which were observations made at the

accident site three hours earlier, there were no medical records presented from the

hospital which would have established his mental state upon arrival, the extent of

his injuries, or the medications he may have been administered prior to the two

troopers interviewing him at the hospital. Defendant even had the opportunity at

the hearing to examine the nurse who drew his blood. Instead, Defendant agreed

with the trial court that the nurse’s testimony would have been irrelevant to the

suppression question, even though the nurse’s observations about Defendant’s

mental status and his medications could have been very relevant.

As pointed out by the State, the trial court relied on observations noted in the

EMT’s report that Defendant was suffering from altered levels of consciousness

and was unable to sign a consent form for treatment three hours before the trooper

spoke with Defendant at the hospital. In its ruling, the trial court stated that

Trooper Sims noted on the optional test form that Defendant was incoherent.

Trooper Sims explained what he meant was that it was difficult to understand

Defendant. Defendant’s “incoherency,” his trouble speaking, may have been due

10

to the fact he had suffered fractures of his jaw during the accident, not because he

did not understand what was being told to him or asked of him by the troopers.

Defendant’s actual answers, as noted by Trooper Sims, were specific. He

told Trooper Sims that he had been drinking crown and coke. There was testimony

that an opened crown royal bottle was found in the Defendant’s truck. He told the

trooper that he was at Burton Coliseum and was driving a friend home when the

accident occurred. He also told Trooper Sims that he had seen a doctor for a health

checkup on the Wednesday before. He even told the trooper the doctor’s name.

When asked if he had taken any medication in the last twenty-four hours, he

answered yes, but there was no indication of what type, how much, or what time

the medication was taken.

Trooper O’Connell visited Defendant at the hospital an hour later. He

testified Defendant was conscious, and although he was slurring his words,

Defendant gave the trooper the same information he gave to Trooper Sims. The

trial court discussed the troopers’ credibility, calling their testimony “honest,” yet

the trial court seemed to rely almost entirely on the EMT’s observations at the time

of the accident and, erroneously, in our view, completely disregarded the testimony

of the troopers that defendant gave free and voluntary statements and freely and

intelligently consented to the blood draw.

The State points out in brief that the trial court stated the troopers’

testimonies were credible and reliable and argues, “A trial court’s determination

and its conclusions on credibility and weight of testimony relating to voluntariness

of the confession are entitled to great weight and will not be overturned unless

unsupported by the evidence.” State v. Batiste, 06-824, p. 10 (La.App. 5 Cir.

11

3/13/07), 959 So.2d 626, 634; see also State v. Massey, 02-872 (La.App. 5 Cir.

2/11/03), 841 So.2d 862, writ denied, 03-805 (La. 10/17/03), 855 So.2d 758.”

Moreover, even were we to find, which we do not, that Defendant’s consent

was not valid and the trooper should have obtained a warrant prior to the blood

draw, the State argues that Trooper Sims acted in good faith and the evidence

should not be excluded from trial. In State v. Brock, 47,005, pp. 5-7 (La.App. 2

Cir. 3/7/12), 91 So.3d 1003, 1006-07, writ denied, 12-784 (La. 9/28/12), 98 So.3d

826, the second circuit noted in a similar case:

If evidence was derived from an unreasonable search or seizure,
the proper remedy is exclusion of the evidence from trial. State v.
Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, citing Weeks v.
United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This
exclusionary rule is designed to safeguard Fourth Amendment rights
generally through its deterrent effect. Herring v. United States, 555
U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). However, the fact
that a search or arrest was unreasonable does not necessarily mean
that the exclusionary rule applies. The exclusionary rule is not an
individual right and applies only where it results in appreciable
deterrence. In addition, the benefits of deterrence must outweigh the
substantial social cost of letting guilty and possibly dangerous
defendants go free. Herring, supra.

The United States Supreme Court has created a good faith
exception to the exclusionary rule. In United States v. Leon, 468 U.S.
897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the court held that
evidence seized in a search pursuant to a warrant, which was invalid
for lack of probable cause, need not be excluded at trial if the officers
who conducted the search reasonably believed that the warrant was
valid. United States v. Leon, supra; State v. Long, 2003-2592
(La.9/9/04), 884 So.2d 1176. The court explained that the
exclusionary rule “is designed to deter police misconduct rather than
to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916,
104 S.Ct. at 3417.

In 2009, the United States Supreme Court applied Leon’s good
faith exception to allow admission of evidence obtained after an arrest
made pursuant to a previously recalled warrant. In the Herring case,
officers in Coffee County arrested Herring based on an outstanding
warrant listed in a neighboring county’s database. A search incident to
that arrest yielded methamphetamine and a pistol. It was then
determined that the arrest warrant had been recalled five months
earlier, but that information had not been entered into the database.
12

Herring sought exclusion of the evidence. The court stated that the
exclusionary rule serves to deter deliberate, reckless or grossly
negligent conduct and found that the conduct of the officers was not
so objectively culpable as to require exclusion. The court found that
any marginal benefit resulting from the suppression of evidence
obtained by officers acting in objectively reasonable reliance on a
subsequently recalled warrant did not justify the substantial cost of
exclusion. Herring, supra.

The State further argues, in the alternative, that the inevitable discovery

doctrine should allow the blood/alcohol test results to be admitted at trial since

Trooper Sims testified that if he had not gotten consent, he would have applied for

a warrant. A statement by police officers that they will apply for a warrant if

refused consent for a search does not necessarily vitiate the voluntariness of the

consent. State v. Franklin, 95-1876 (La. 1/14/97), 686 So.2d 38; State v.

MacDonald, 390 So.2d 1276 (La.1980). The inevitable discovery doctrine is a

well-settled judicial doctrine that supplies an exception to the exclusionary rule.

State v. Hill, 97-2551 (La. 11/16/98), 725 So.2d 1282. In fact, in this case the trial

judge noted in his reasons for ruling: “. . . the judge would have signed a warrant

and got the permission to draw the blood, okay, under this type of injury, all right.”

In response to the State’s inevitable discovery and good faith alternatives,

Defendant incongruously argues that “the State should be prevented from raising

new arguments for the first time on appeal.” Defendant cites several cases which

are not applicable to the instant case. In those cases, motions to suppress were

never filed prior to trial, or the alleged inadmissible evidence was given at trial and

defendant did not object, thereby waiving the issue on appeal. Defendant is

attempting to imply that since the State did not specifically discuss the inevitable

discovery doctrine or the good faith exceptions to the exclusionary rule at the

suppression hearing, the State should not be allowed to raise those arguments now.

13

In State v. Guidry, 03-625 (La.App. 5 Cir. 1/27/04), 866 So.2d 944, the trial

court granted the defendant’s motion to suppress based on a defective warrant.

The state filed for supervisory review, and the fifth circuit agreed with the trial

court. The state then filed a writ with the supreme court seeking review of the fifth

circuit’s ruling. The supreme court remanded to the fifth circuit “for written

treatment and reconsideration in light of United State v. Leon, [468 U.S. 897, 104

S.Ct. 3405 (1984)] which generally recognized a ‘good faith’ exception to

precluding suppression.” Id. at 945; see also State v. Guidry, 03-1944 (La.

11/21/03), 862 So.2d 965.

In this case, considering the testimony of the two troopers and the

circumstances as presented at the hearing, this court finds that the State met its

burden of proving that the statements to the troopers were freely and voluntarily

made and that Defendant’s consent to allow the blood/alcohol test was knowingly

and voluntarily given. Any marginal benefit resulting from the suppression of

evidence obtained by the troopers acting in objectively reasonable reliance on

Defendant’s verbal consent did not justify the substantial cost of exclusion. The

trial court erred when it granted Defendant’s motion to suppress the results of the

blood/alcohol test.

We further find that Defendant’s verbal acknowledgement of his Miranda

rights was voluntarily and knowingly given and that his lack of signature due to his

injuries did not indicate lack of consent to answer questions. In State v. Johnson,

07-1040 (La.App. 4 Cir. 9/10/08), 993 So.2d 326, writ denied, 08-2649 (La.

6/5/09), 9 So.3d 868, the defendant, who was severely burned when he set his

girlfriend on fire, sought to suppress statements because he was so incapacitated by

his injuries that he was unable to knowingly and intelligently waive his Miranda

14

rights. While Johnson was on medication for his burns and did sign the waiver of

rights form, the fourth circuit noted that “[i]n cases involving allegations of

diminished mental capacity, a defendant has the burden of proving the existence of

any mental abnormality that might render his confession per se involuntary.” Id. at

333.

Finally, we also note that the Trooper Sims was found credible by the trial

judge and acted in good faith when he accepted Defendant’s verbal consent to the

blood/alcohol test and the verbal waiver of his Miranda rights.

CONCLUSION

WRIT GRANTED AND MADE PEREMPTORY: The trial court erred

when it granted Defendant’s October 17, 2016, motions to suppress the

blood/alcohol test results and the statements made by Defendant. The State met its

burden of establishing that Defendant freely and voluntarily gave verbal consent to

the test and that he knowingly and intelligently waived his Miranda rights.

Accordingly, the trial court’s ruling is reversed, and the matter is remanded for

further proceedings.

15

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-580

STATE OF LOUISIANA

VERSUS

DAVID RAY NEWSOM

GREMILLION, J., dissents for the following reasons:

I respectfully disagree with the majority. I find this court's review of the

trial court's determinations hinges on the standard of review. As the majority

points out, we should not disturb the lower court's findings unless there is a “clear

abuse of discretion” because they are entitled to “great weight.” State v Thomas,

02-471, p.3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, 1139-40, writ denied, 02-

2920 (La. 4/21/03), 841 So.2d 789. Here, the trial court relied on evidence that the

defendant was injured, medicated, and was suffering from an “altered level of

consciousness” at the time he offered consent and was Mirandized. Were I sitting

on the trial bench, I may have ruled differently. But, from the appellate bench, I

cannot see any clear abuse of discretion. Therefore, I would deny the state's writ.