No. 07-1529

F~LED

JUt S-OFFICE OF THESUPREM~ (’;n~ lnT

toe ~,ul~reme (Eaurt of toe i~nite~ ~tate~

JESSE JAY MONTEJO

Petitioner

V.

STATE OF LOUISIANARespondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE LOUISIANA SUPREME COURT

BRIEF IN OPPOSITION TO PETITIONFOR WRIT OF CERTIORARI

KATHRYN LANDRY

Counsel of RecordSPECIAL APPEALS COUNSEL

FOR WALTER P. REED,

DISTRICT ATTORNEY

POST OFFICE BOX 82659

BATON ROUGE, LA 70884

TELEPHONE: (225) 766-0023

Counsel for Respondent, State of Louisiana

LEGAL PRINTERS, Washington DC ¯ 202-747-2400 ¯ legalprinters.com

TABLE OF CONTENTS

TABLE OF CONTENTS ...................... iTABLE OF AUTHORITIES ...................iiSTATEMENT OF THE CASE .................1

A. State Court Proceedings ...............1B. Facts ............................. 2

ARGUMENT ............................... 8A. The Ruling of the Louisiana Supreme

Court was in Accordance Withthe Precedent of this HonorableCourt ........................... 81. Facts Relevant to Sixth

Amendment Issues ...........82. Montejo’s Sixth Amendment

Rights Were Not Violated ... 10B. Harmless Error .................. 21

CONCLUSION~ 5 ~ ,

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES:

Arizona v. Fulminante, 499 U.S. 279,111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) .....21

Fellers v. United States, 540 U.S. 519,124 S.Ct. 1019, 157 L.Ed.2d 1016 .........10

Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404,89 L.Ed.2d 631 ....... 10, 11, 13, 14, 15, 16, 17

Milton v. Wainwright, 407 U.S. 371,92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) .........21

Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389,101 L.Ed.2d 261(1988) ........... 12, 13, 14, 15, 16, 17, 18, 20

UNITED STATES COURT OF APPEALS CASES:

Montoya v. Collins, 955 F.2d 279 (5th Cir. 1992),cert. denied, 506 U.S. 1036, 113 S.Ct. 820,121 L.Ed.2d 692 (1992) ......... 14, 15, 16, 17

UNITED STATES CONSTITUTION:

U.S. Const.,Sixth Amendment . 1, 10, 13, 14, 15, 18, 19, 20, 21

LOUISIANA CODE OF CRIMINAL PROCEDURE:

La.C.Cr.P. Art. 230.1 .....................8

ii

STATEMENT OF THE CASE

A. State Court Proceedings

Defendant herein, Jesse J. Montejo, (hereinafterreferred to as "Montejo") and another individual, JerryMoore, were indicted on October 24, 2002 by a grandjury for the first degree murder of Louis Ferrari, whowas found by his wife after being murdered in theirhome on September 5, 2002. The trials of the twoindividuals, Montejo and Jerry Moore, were severedpursuant to a defense motion.

The defendant herein, Montejo, proceeded totrial, and a jury found Montejo guilty of first degreemurder on March 9, 2005. Following the penaltyphase, which was held on March 10, 2005, the jurydetermined that Montejo should be sentenced to death.Montejo’s conviction and sentence were affirmed by theLouisiana Supreme Court on January 16, 2008, and hisrequest for rehearing was denied on March 7, 2008.

Montejo has now petitioned this HonorableCourt, arguing that his Sixth Amendment rights wereviolated when the police interrogated him after hisright to counsel had attached and counsel had beenappointed to represent him. Montejo argues that aletter he wrote to the victim’s widow, which wasintroduced into evidence at the trial, was obtained inviolation of his Sixth Amendment rights and shouldhave been excluded from evidence.

For the reasons stated herein, the State submitsthat the Petition for Writ of Certiorari filed herein byJesse Montejo should be denied. While the Statesubmits that Montejo’s claim should fail on the merits,

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the State further submits that any error in theintroduction of the statement at issue was harmless inlight of the other evidence, which is not the subject ofthis application and which overwhelmingly provedMontejo’s guilt.

B. Facts

On September 5, 2002, Lou Ferrari wasmurdered in his home in St. Tammany Parish. LouFerrari was found in the kitchen of his home by hiswife, Pat Ferrari. Lou Ferrari had suffered twogunshot wounds, one to the right chest area and one tothe right eye. (Testimony of Dr. Michael Difatta,Record at p. 2268 and 2272). The wound to the chestwas determined to be a contact wound, meaning thegun was in contact with Mr. Ferrari’s body when it wasfired. However, the gunshot wound to the chest exitedMr. Ferrari’s body and was a non-fatal injury.(Testimony of Dr. Michael Difatta, Record at pp.2269-2270). The gunshot wound to the right eyeresulted in a complete destruction of the right eye. Thebullet traveled through the eye, then through the rightbase of the brain, and exited the back of Mr. Ferrari’sskull. This gunshot wound was fatal within a matterof seconds. (Testimony of Dr. Michael Difatta, Recordat pp. 2272-2273).

The Ferrari family operated a dry-cleaningbusiness for approximately 26 years, operating tenstores in the area at the time of Mr. Ferrari’s murder.Lou Ferrari’s wife, Pat, and son, Louis, worked withhim in the business. Montejo was an

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acquaintance/friend of Jerry Moore1, who hadperformed mechanical work on the equipment at theFerrari stores for a number of years.

Montejo was known to drive a blue van, whichwas his mode of transportation in driving Moore.(Testimony of Louis Ferrari, III, Record at pp. 2428).The blue van was apparently quite distinctive, with a"cattle guard" on the front. (Testimony of StacyStubbenville, Record at pp. 2438-2439). Defendant wasplaced at the scene of the murder at the approximatetime of the murder by neighbors of the Ferraris whorecalled this van. In addition to the foregoing, theinvestigating officers and crime scene personnelcollected fingernail scrapings from Lou Ferrari.Photographs were taken of defendant, which showedabrasions on his neck. (Testimony of Detective JerryHall, Record at pp. 2712-2713). Dr, Sudhir Sinha, anexpert in molecular biology and DNA, performed theDNA testing on these scrapings. Dr. Sinha testifiedthat the DNA in the left fingernail scrapings resultedfrom an intentional scratch and was not the result ofminor contact, such as shaking hands. According toDr. Sinha, there was a high degree of certainty, the

1As a result of his role in the murder ofLou Ferrari, JerryMoore was charged with and convicted by a jury of second degreemurder under Louisiana law. Jerry Moore was not present at thetime of the murder and did not discharge the weapon. He lateridentified Montejo as the shooter. Moore was sentenced to lifeimprisonment without benefit of parole, probation or suspensionof sentence. The conviction and sentence of Moore was affirmedby the Louisiana First Circuit Court of Appeal, Docket no. 2006KA 1979, and the Louisiana Supreme Court denied his writapplication.

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chance of a random match being I in 163 billion, thatthe DNA found in the fingernail scrapings from thevictim matched defendant. (Testimony of Dr. SudhirSinha, Record at pp. 2623-2632).

Once Mr. Ferrari entered his home thatafternoon, he had no means of escaping Montejo, intenton getting the money he wanted. The testimony of theChief Deputy Coroner, Dr. Michael Difatta, establishedthat the gunshot wound to Mr. Ferrari’s eye wouldhave resulted in almost instantaneous death, droppingthe victim "right there". (Testimony of Dr. MichaelDifatta, Record at p. 2273). The crime scenephotographs showed the position of Mr. Ferrari,demonstrating that the victim was cornered byMontejo when he was shot and killed.

Defendant testified at the trial and admitted hewas at the Ferrari house when Lou Ferrari wasmurdered, although he claimed that he was there byvirtue of an invitation from Mr. Ferrari. Defendantclaimed at trial that a black male who he could onlyidentify as D.P. was the murderer. However, Montejohad previously confessed in a videotaped interviewwith police. As the Louisiana Supreme Court noted inits decision, the story he gave at trial was the seventhversion of the crime given by Montejo, which was "anelaborated variation" of the fifth version. (Pet. App., p.18a). Montejo, as detailed below, had an extensivecriminal history. During the interrogation, heappeared to be a savvy ex-con, who was trying to readthe police, attempting to determine how much theyknew as he spoke with them. He gave the police bitsand pieces of information, which gradually increaseduntil he confessed to shooting Mr. Ferrari, although,

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even then, he tried claiming accident and a thirdparty’s involvement to minimize his role and intent inthe crime. As the Louisiana Supreme Court noted, thejury watched approximately four hours of thevideotaped police interrogation of Montejo, "duringwhich Montejo slowly made increasingly incriminatingstatements until he finally admitted that he shot thevictim, who had unexpectedly returned home andinterrupted Montejo’s burglary." (Pet. App. 9a).

Montejo further testified at trial to his extensivecriminal history from Florida, particularly with regardto burglary and robbery, and his prior convictions areas follows:Docket No. 963783: Theft, burglaryDocket No. 962944: Armed burglary, criminal

mischiefDocket No. 962945: Burglary, petty theftDocket No. 962723: Burglary, grand theftDocket No. 962946: Armed burglary, burglary,

grand theftDocket No. 963343: Armed burglaryDocket No. 963342: Burglary, petty theftDocket No. 963226: Armed burglary, theftDocket No. 963227: Burglary, grand theftDocket No. 963228: Burglary, grand theftDocket No. 963341: Armed burglary, grand theftDocket No. 962344: Burglary, grand theftDocket No. 960294: Armed burglary, burglary

With respect to the letter which is at issue inthis Petition, a hearing was held on defendant’s motionto suppress. Detective Jerry Hall testified that on the

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morning of September 10, 20022, this follow-up was aneffort to locate the gun that had been used in the crimeand the money bag taken from Mr. Ferrari. The policealready had Montejo’s videotaped confession. In fact,Montejo had provided the police, during thatconfession, with an approximate area where he hadthrown the gun into Lake Ponchartrain, the largestlake in Louisiana, consisting of approximately 600square miles. Montejo had told the officers in hisconfession that he just went to the home for a burglary,not murder, and that the gun he used belonged to Mr.Ferrari. Apparently, in his attempt to furtherexculpate himself, he told the officers he wanted tohelp them find the gun to prove he was telling thetruth. (Testimony of Det. Wade Major, Record at p.967).

The police had divers in the lake, but had beenunable to locate the weapon. Detective Hallapproached Montejo, because Montejo had previouslyoffered to help locate the gun and asked Montejo if hewould accompany them to the bridge and assist infurther pinpointing the area where,, he disposed of thegun, to which Montejo consented, without issue.Although defendant alleges, citing his own testimonyat trial, that he told Detective Hall that he had alawyer appointed to him that morning, defendant’stestimony directly contradicts the testimony of the

2Originally, Detective Hall referred to this contact asoccurring on September 9, 2002, but later corrected this referenceto September 10, 2002. The original reference to September 9 wassimply an error. (Testimony of Detective Jerry Hall, Record at p.1016).

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officers. Detective Jerry Hall testified that he askedMontejo that morning if he had been contacted by anattorney, to which Montejo responded that he had not.(Testimony of Detective Jerry Hall, Record at p. 999).Montejo not only did not tell the officers that counselhad been appointed, but he unequivocally deniedhaving a lawyer when directly asked by Detective Hall.In fact, Montejo told the detectives he just wanted toclear this up and never requested a lawyer.(Testimony of Detective Jerry Hall, Record at p. 1002).As the Louisiana Supreme Court found, "there is nodispute that defendant was given his Mirandawarnings and that he signed a waiver of these rightsprior to the September 10 excursion to look for themurder weapon, during which time he wrote theapology letter to Mrs. Ferrari." (Pet. App. 49a).

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ARGUMENT

The Ruling of the Louisiana SupremeCourt Was in Accordance with theprecedent of this Honorable Court

1. Facts Relevant to SixthAmendment Issues

The minute entries from this proceeding reflectthat a seventy-two (72) hour hearing, pursuant toLouisiana law, was held on the morning of September10, 2002. La.C.Cr.P. art. 230.1 provides that thesheriff or law enforcement officer having custody of anarrested person shall bring him promptly, and in anycase within seventy-two hours from the time of thearrest, before a judge for the purpose of appointment ofcounsel, and the judge may also determine or review aprior determination of the amount of bail. The minuteentry from that seventy-two hour hearing is includedin Petitioner’s Appendix D, p. 63a, and provides thatthe defendant was present, and further provides thatno bond was set, the defendant, being charged withfirst degree murder, and the "court ordered the Officeof Indigent Defender be appointed to represent thedefendant".

Prior to this date, the police already hadMontejo’s videotaped confession, which was admittedat trial, and which is not the subject of this petition.During that confession, Montejo had provided thepolice with an approximate area where he had thrownthe gun into Lake Ponchartrain, the largest lake inLouisiana, consisting of approximately 600 square

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miles. During his confession, Montejo told the officersthat he just went to the home for a burglary, notmurder, and that the gun he used belonged to Mr.Ferrari. Apparently, in his attempt to furtherexculpate himself, he told the officers he wanted tohelp them find the gun to prove he was telling thetruth. (Testimony of Det. Wade Major, Record at p.967).

The police had divers in the lake, but had beenunable to locate the weapon. They were working witha large grid, and Lake Ponchartrain can be atreacherous and dangerous body of water. DetectiveHall approached Montejo, because Montejo hadpreviously offered to help locate the gun and askedMontejo if he would accompany them to the bridge andassist in further pinpointing the area where hedisposed of the gun, to which Montejo consented,without issue.

Although defendant alleges, based upon his owntestimony at trial, that he told Detective Hall that hehad a lawyer appointed to him that morning,defendant’s testimony directly contradicts thetestimony of the officers. Detective Jerry Hall testifiedthat he asked Montejo that morning if he had beencontacted by an attorney, to which Montejo respondedthat he had not. (Testimony of Detective Jerry Hall,Record at p. 999). Not only did Montejo not ask for thehelp of a lawyer, he specifically denied having alawyer. In fact, Montejo told the detectives he justwanted to clear this up and never requested a lawyer.(Testimony of Detective Jerry Hall, Record at p. 1002).As the Louisiana Supreme Court found, "there is nodispute that defendant was given his Miranda

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warnings and that he signed a waiver of these rightsprior to the September 10 excursion to look for themurder weapon, during which time he wrote theapology letter to Mrs. Ferrari." (Pet. App. 49a). In theletter, Montejo attempts to excuse his actions, in yetanother exculpatory attempt.

Montejo" s Sixth AmendmentRights Were Not Violated

The Sixth Amendment right to counsel istriggered at or after the time judicial proceedings havebeen initiated, whether by way of formal charge,preliminary hearing, indictment, information orarraignment. Fellers v. United States, 540 U.S. 519,124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004).

The Louisiana Supreme Court held in this casethat the seventy-two hour hearing on September 10,2002 marked the initiation of adverse criminalproceedings, and in this case, Montejo’s right tocounsel attached at that hearing. (Pet. App., p. 47a).The State submits that the issues then becomewhether the police interrogated or "deliberatelyelicited" incriminating statements from Montejo afterthat hearing, whether Montejo asserted or exercisedhis right to counsel, and whether the waiver of hisrights was valid.

In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct.1404, 89 L.Ed.2d 631 (1986), this Honorable Court heldthat if police initiate interrogation after a defendant’sassertion at an arraignment or similar proceeding ofhis right to counsel, any waiver of the defendant’s rightto counsel for that police initiated interrogation is

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invalid. The first issue is whether the actions at issueherein constituted an "interrogation" or "deliberateelicitation" of incriminating words by police. The Statesubmits that Montejo had already confessed onvideotape, had provided a general description of thelocation where he threw the gun into the lake and toldthe police he wanted to find the gun to prove the factthat he was not armed when he entered the home. Theofficers testified that Montejo asked them for a penand paper, and he wrote the letter to Mrs. Ferrariwithout any promises or coercion. (Testimony of Det.Jerry Hall, Record at p. 2723). Accordingly, the Statesubmits the officers did not interrogate or deliberatelyelicit any statements from Montejo. This letter waswritten by Montejo as yet another attempt to minimizehis actions.

In addition, in Michigan v. Jackson, supra, therecord reflected that the defendant had "requested"that counsel be appointed for him at his arraignment.While in footnote 6 of that ruling this Court stated thatit was not suggesting that the right to counsel turnedon such a request, the Court also stated that thedefendant’s request for counsel was an "extremelyimportant fact" in considering the validity of asubsequent waiver in response to police initiatedinterrogation. See Michigan v. Jackson, supra at p.633. It is clear from the Court’s statements thereinthat an affirmative request by a defendant for counselshould be considered. In the case presently before thisHonorable Court, there was no such request. Theofficers clearly testified that Montejo never mentionedto them he had an attorney, and in fact, one of thedetectives specifically asked Montejo if he had an

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attorney, to which Montejo responded negatively. Theofficers did not attempt to ignore any request byMontejo for counsel. They actively inquired of Montejowhether he had counsel, and it was Montejo whodenied having counsel. Moreover, the minute entry ofthe hearing does not reflect a request by Montejo forcounsel. The state court merely refused to set bondand appointed the public defender to representMontejo.

As stated above, on the morning in question, thedetectives were trying to follow up to locate the gunused to kill Mr. Ferrari. Montejo had alreadyconfessed at this point in a videotaped interview, givena general description of the area where he threw thegun and offered to help find the gun. However, LakePonchartrain is the largest lake in Louisiana, coveringapproximately 600 square miles. The officers had beenunable to find the gun based upon Montejo’s verbaldescription, so they asked him to accompany them topoint out the area where he threw the gun. Montejovoluntarily accompanied the officers. (Testimony ofDet. Jerry Hall, Record at pp. 987-990). While in thecar, Montejo asked for a pen and paper and wrote anapology letter to Mrs. Ferrari. According to theofficers, they did not tell him to write the letter and didnot direct him on what to include in the letter.(Testimony of Det. Jerry Hall, Record at p. 2736). It isthis letter which is the subject of this petition.

The fact that a defendant’s affirmative requestfor counsel is pivotal to this issue is furtherexemplified by this Honorable Court’s ruling inPatterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101L.Ed.2d 261 (1988). In that case, the court determined

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whether the interrogation of the defendant after hisindictment violated his Sixth Amendment right tocounsel. In doing so, this Court noted that there wasno doubt that defendant had the right to assistance ofcounsel at his post-indictment interviews under theSixth Amendment. The Court noted, in footnote 3 ofits ruling, that defendant "had not retained or acceptedby appointment" a lawyer to represent him at the timeof the questioning. See Patterson v. Illinois, supra atp. 290. The court specifically noted that the defendantin that case at no time sought to exercise his right tohave counsel present and stated as follows:

The fact that petitioner’s SixthAmendment right came into existencewith his indictment, i.e., that he had sucha right at the time of his questioning,does not distinguish him from thepreindictment interrogatee whose right tocounsel is in existence and available forhis exercise while he is questioned. Hadpetitioner indicated he wanted theassistance of counsel, the authorities’interview with him would have beenstopped and further questioning wouldhave been forbidden (unless petitionercalled for such a meeting). This was ourholding in Michigan v. Jackson, suprawhich applied Edwards to the SixthAmendment context. We observed thatthe analysis in Jackson is renderedwholly unnecessary if petitioner’s positionis correct: under petitioner’s theory, the

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officers in Jackson would have beencompletely barred from approaching theaccused in that case unless he called forthem. Our decision in Jackson, however,turned on the fact that the accused "ha[d]asked for the help of a lawyer" in dealingwith the police. [Citations omitted.]Patterson v. Illinois, supra at pp. 290-291.

In rejecting Montej o’s alleged Sixth Amendmentviolation claim, the Louisiana Supreme Court reliedupon a decision issued by the United States FifthCircuit of Appeals in Montoya v. Collins, 955 F.2d 279(5th Cir. 1992), cert. denied 506 U.S. 1036, 113 S.Ct.820, 121 L.Ed.2d 692 (1992). The facts of that casewith respect to the Sixth Amendment issues were verysimilar to the facts currently before this HonorableCourt. In Montoya, supra, the defendant was takenbefore a magistrate, and the court noted that his SixthAmendment rights attached at that time. It wasundisputed that during Montoya’s appearance beforethe magistrate, the magistrate appointed counsel torepresent Montoya. The Fifth Circuit noted that theTexas state courts found, based upon the record, thatMontoya did not request counsel, but the magistrateappointed counsel. The court further noted that at notime did Montoya make a statement or affirmationrequesting counsel or accepting counsel. The courtfound that he "did nothing at all" when the magistrateappointed counsel for him. See Montoya, supra at p.282. The same is true herein. Montejo’s SixthAmendment rights attached at the time of the 72 hourhearing. The minute entry reflects that bond was

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denied and the Indigent Defender Board was appointedto represent the defendant, but there was nostatement, request or other affirmation made byMontejo at that time to reflect his request for oracceptance of such counsel. The Louisiana SupremeCourt held that something more than "muteacquiescence" in the appointment of counsel isnecessary to trigger the enhanced protection providedby Michigan v. Jackson, supra. (Pet. App., p. 47a).

In Montoya, supra, the Fifth Circuit noted that,although Montoya’s Sixth Amendment rights attachedwhen he was brought before the magistrate, "standingalone however the mere attachment of a defendant’sSixth Amendment rights does not bar police fromattempting to interrogate him". Montoya, supra at p.282, citing Patterson v. Illinois, supra.

In holding that Montoya did not assert his rightto counsel within the meaning of Michigan v. Jackson,supra, the Fifth Circuit reasoned as follows:

The rule of Jackson is invoked by thedefendant’s ’assertion... of the right tocounsel’. This language connotes anactual, positive statement or affirmationof the right to counsel. At no time didMontoya make such a statement oraffirmation-as the state court found, hedid not request counsel, and he saidnothing at all when the magistrateappointed counsel for him . . . Rather,Montoya never asserted, or invoked, hisright to counsel in the first place... Forpurposes of Jackson, an ’assertion’ means

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some kind of positive statement or otheraction that informs a reasonable personof the defendant’s ’desire to deal with thepolice only through counsel’. Thisholding does not require a defendant toutter the magic words ’I want a lawyer,’in order to assert his right to counsel...But interpretation, whether broad ornarrow, is only required when there is a’request’ or an ’assertion’ in the firstplace. [Footnotes omitted.] [Citationsomitted.] Montoya, supra at p. 282-283.

The Fifth Circuit found that the argument setforth by Montoya would extend the prophylactic rule ofMichigan v. Jackson, supra, to situations where themagistrate tells the defendant that he is appointingcounsel for the defendant, and the defendant does notreject the appointment, but also does not seek toconsult with counsel. The court cited this HonorableCourt’s decision in Patterson v. Illinois, supra, statingthat in that case, although the defendant had the rightto have the assistance of counsel at his post-indictmentinterviews, Michigan v. Jackson did not apply becausethe defendant "at no time sought to exercise his rightto have counsel present". Montoya, supra at p. 283,citing Patterson v. Illinois, supra at p. 290. The FifthCircuit further noted footnote 3 in Patterson v. Illinois,supra, recited hereinabove by the State, whichreferences whether a defendant had retained oraccepted by appointment a lawyer to represent him.The Fifth Circuit continued as follows:

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If the rule of Jackson is invoked by adefendant’s ’indicating’ his ’choice’, thenit makes little sense to apply the rule inthis case, where Montoya indicatednothing, expressed no choices and madenot the slightest response to themagistrate’s intention to appoint a lawyerfor him. Montoya, supra at p. 283.

The State submits the reasoning by the FifthCircuit Court of Appeals is soundly based upon theprecedent of this Honorable Court, and in fact, thisHonorable Court denied certiorari in Montoya, supra.On the date in question, September 10, 2002, Montejonever requested nor did he accept by appointmentcounsel. When directly asked about counsel, he deniedhaving counsel. He never sought to invoke his right tocounsel, and therefore, the rule of Michigan v. Jackson,supra, was inapplicable.

The issue then becomes whether this defendant,Montejo, validly waived his right to counsel. TheLouisiana Supreme Court found that there was nodispute that Montejo was given his Miranda warningsand that he signed a waiver of these rights prior to theSeptember 10 excursion to look for the murder weapon,during which time he wrote the apology letter to Mrs.Ferrari. (Pet. App. 49a). In Patterson v. Illinois,supra, this Honorable Court noted that a waiver of theSixth Amendment right to counsel is valid only whenit reflects an intentional relinquishment orabandonment of a known right or privilege. InPatterson, supra at p. 293, this Court was convincedthat by admonishing the defendant with Miranda

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warnings, the state had met its burden and thatdefendant’s waiver of his right to counsel at the postindictment questioning was valid. This Court heldthat the Miranda warnings given to defendant madehim aware of his right to have counsel present duringthe questioning and also served to make him aware ofthe consequences of a decision by him to waive hisSixth Amendment rights during post-indictmentquestioning. The Court specifically noted that thedefendant therein knew that any statement he madecould be used against him in subsequent criminalproceedings, noting that this is the ultimate adverseconsequence a defendant could have suffered by virtueof his choice to make uncounseled admissions to theauthorities. In holding that Miranda warnings and thewaiver of his rights was sufficient to apprise him of thenature of his Sixth Amendment rights, this HonorableCourt stated as follows in Patterson v. Illinois, supra:

As a general matter, then, an accusedwho is admonished with the warningsprescribed by this Court in Miranda hasbeen sufficiently apprised of the nature ofhis Sixth Amendment rights, and of theconsequences of abandoning those rightsso that his waiver on this basis will beconsidered a knowing and intelligent one... Once it is determined that a suspect’sdecision not to rely on his rights wasuncoerced, that he at all times knew hecould stand mute and request a lawyerand that he was aware of the state’sintention to use his statements to secure

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a conviction, the analysis is complete andthe waiver is valid as a matter of law...

***

¯ . . we have never suggested that oneright is ’superior’ or ’greater’ than theother, nor is there any support in ourcases for the notion that because a SixthAmendment right may be involved, it ismore difficult to waive than the FifthAmendment counterpart.

Applying this approach, it is our viewthat whatever warnings suffice forMiranda’s purposes will also be sufficientin the context of postindictmentquestioning. The State’s decision to takean additional step and commence formaladversarial proceedings against theaccused does not substantially increasethe value of counsel to the accused atquestioning or expand the limitedpurpose that an attorney serves when theaccused is questioned by authorities.With respect to this inquiry, we do notdiscern a substantial difference betweenthe usefulness of a lawyer to a suspectduring custodial interrogation and hisvalue to an accused at post indictmentquestioning.

Thus, we require a more searching orformal inquiry before permitting anaccused to waive his right to counsel at

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trial than we require for a SixthAmendment waiver duringpostindictment questioning-not becausepostindictment questioning is ’lessimportant’ than a trial (the analysis thatpetitioner’s "hierarchical’ approach wouldsuggest)-but because the full ’dangersand disadvantages of self-representation’during questioning are less substantialand more obvious to an accused than theyare at trial. Because the role of counselat questioning is relatively simple andlimited, we see no problem in having awaiver procedure at that stage which islikewise simple and limited. So long asthe accused is made aware of the ’dangersand disadvantages of self-representation’during postindictment questioning, byuse of the Miranda warnings, his waiverof his Sixth Amendment right to counselat such questioning is ’knowing andintelligent’. [Citations omitted.][Footnotes omitted.] Patterson v. Illinois,supra at pp. 298-300.

As stated hereinabove, there is no factualdispute that Montejo was given his Miranda rights andwaived those rights prior to writing the letter at issue.Accordingly, the State submits his waiver was valid.

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B. Harmless Error

As argued above, the State of Louisiana submitsthat the state court correctly allowed the introductioninto evidence of the letter written by defendant, whichhe asserts herein was obtained in violation of his SixthAmendment rights. However, the State submits thateven if any error is found by this Honorable Court withthe admission of such letter, any such error washarmless in light of the other overwhelming evidenceof defendant’s guilt at trial.

This Honorable Court has previously held thatthe admission of a confession alleged to have beenobtained in violation of a defendant’s rights is subjectto harmless error analysis. Milton v. Wainwright, 407U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) andArizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246,113 L.Ed.2d 302 (1991). The only evidence at issueherein alleged to have been obtained in violation ofdefendant’s Sixth Amendment right to counsel is theletter which he wrote to the victim’s widow onSeptember 10, 2002. The State submits that theverdict rendered herein was certainly not attributableto any error in the introduction of the letter at issue.The jury had before it approximately four hours ofvideotaped interviews with Montejo, conducted prior tothis time, in which Montejo admitted that he shot Mr.Ferrari when he unexpectedly returned home andinterrupted Montejo’s burglary of the home. Thevideotaped confession is not at issue in this Petition,and the admission of such videotaped interviews withMontejo were upheld by the state district court and theLouisiana Supreme Court. Moreover, the

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uncontradicted testimony of the witnesses at trialplaced Montejo at the scene of the crime at theapproximate time of the murder, DNA evidencematching defendant was found under the fingernails ofthe victim, and photographs taken of defendant shortlyafter his arrest shows abrasions on his neck consistentwith scratches. The Louisiana Supreme Court noted inits decision the testimony of Dr. Sinha, an expert inmolecular biology and DNA analysis, who testified atthe trial and "concluded that the victim intentionallyscratched defendant because sample characteristicsruled out DNA transfer by coincidental contact". (Pet.App., p. 5a).

This Honorable Court need not reach the meritsof Montejo’s claims herein, because any error inallowing introduction of the letter at issue washarmless.

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CONCLUSION

For the foregoing reasons, the State of Louisianasubmits that the Petition for Writ of Certiorari filed byJesse Montejo should be denied.

Respectfully submitted:

KATHRYN LANDRYCounsel of RecordSpecial Appeals Counselfor WALTER P. REED,District AttorneyPost Office Box 82659Baton Rouge, LA 70884Telephone: (225) 766-0023

Counsel for Respondent, State of Louisiana

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