No. 10-416

2.7 7.ore

Sn~upreme ~aurt a[ t[~e ~nitel~ ~tate~

JESSE JAY MONTEJO,

V.

STATE OF LOUISIANA,

Petitioner,

Respondent.

On Petition for Writ of Certiorari tothe Louisiana Supreme Court

BRIEF IN OPPOSITION

October 27, 2010

KATHRYN LANDRY

Counsel of RecordWALTER P. REED, DISTRICT ATTORNEY

HOUSTON C. GASCON, IIIScoTT C. GARDNERPOST OFFICE BOX 82659BATON ROUGE, LA 70884TELEPHONE: (225) 766-0023Kathilandry@aol.com

Counsel for Respondent,State of Louisiana

Becket Gallagher ¯ Cincim~ati, Ott- Washington, D.C.- 800.890.5001

..~,iank Pege

QUESTIONS PRESENTED

In light of the remand order of this Court, whichprovided Montejo with the "opportunity" to contend hisletter of apology should have been suppressed underthe rule of Edwards v. Arizona, 451 U.S. 477 (1981),but coupled with the caution that Montejo’s testimonymay have come too late to affect the propriety of theadmission of the evidence under Louisiana procedurallaw, the questions presented to this Court by Montejoare as follows:

1. Whether Montejo’s September 10th waiver wasinvalid because it was based on allegedmisrepresentations by police that he had notbeen appointed a lawyer, even though this issuewas never presented to the state, court as abasis for suppression and there are disputedfacts regarding any alleged misrepresentations,as a result of his failure to raise this issue in thetrial court.

2. Whether Montejo’s September 10th statementshould have been suppressed under Edwards,supra, even though this issue was neverpresented to the state court as a basis forsuppression.

3. Whether Montejo can raise any issues withrespect to his September 6th videotapedstatements and the conduct of the police inrelation thereto, when those statements werenever at issue when this case was previouslybefore this Court, and therefore, were not partof the remand order.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ...................i

TABLE OF AUTHORITIES ..................iv

STATEMENT OF THE CASE ................1

ARGUMENT .............................. 9

This Court recognized that since Montejo’stestimony came not at the suppressionhearing, but only at trial, under stateprocedural law, it may have come "too late"to affect the propriety of the admission of theevidence ............................. 9

Montejo never raised an Edwards argumentin support of suppression of the letter prior toappeal ............................. 10

Co Louisiana procedural law has longprohibited defendants from raising newgrounds for suppressing evidence onappeal ............................. 11

Do Montejo did not make a clear assertion of theright to counsel when the officers approachedhim about accompanying them on the searchfor the weapon, and therefore, Edwards doesnot require suppression ................15

The police did not make any intentionalmisrepresentations to Montejo regarding hiscounsel and repeatedly informed him of hisright to counsel ...................... 18

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F. The September 6th confession by Montejo wasnot at issue when this case was originallybefore this Court and was not at issue in theremand, and accordingly, it is not properlybefore this Court ..................... 19

G. Harmless Error ...................... 20

CONCLUSION ........................... 22

iv

TABLE OF AUTHORITIES

Cases

Davis v. United States,512 U.S. 452 (1994) ..................... 17

Edwards v. Arizona,451 U.S. 477 (1981) .................. passim

McNeil v. Wisconsin,501 U.S. 171 (1991) ..................... 17

Michigan v. Jackson,475 U.S. 625,(1986) ................8, 11, 14

Minnick v. Mississippi,498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489(1990) ............................. 17, 18

Moran v. Burbine,475 U.S. 412 (1986) .................. 16, 19

State v. Brown,434 So.2d 399 (La. 1983) .................12

State v. Jackson,904 So.2d 907 (La. App. 5 Cir. 2005), writdenied 924 So.2d 162 (La. 2006) ...........12

State v. Johnson,993 So.2d 326 (La. App. 4 Cir. 2008) .......12

Statutes

La. C.Cr.P. art. 230.1 ....................... 6

V

La. C.Cr.P, art 703 ........................ 12

La. C.Cr.P. art. 841 ........................ 13

Blank Page

STATEMENT OF THE CASE

The Murder and Evidence

On September 5, 2002, Lou Ferrari was murderedin his home in St. Tammany Parish, and was found inthe kitchen by his wife, Pat Ferrari. Lou Ferrari hadsuffered two gunshot wounds, one to the right chestarea and one to the right eye. The wound to the chestwas determined to be a contact wound, meaning thegun was in contact with Mr. Ferrari’s body when itwas fired. However, the gunshot wound to the chestexited Mr. Ferrari’s body and was a non-fatal injury.The gunshot wound to the right eye resulted in acomplete destruction of the right eye. The bullettraveled through the eye, then through the right baseof the brain, and exited the back of Mr. Ferrari’s skull.This gunshot wound was fatal within a matter ofseconds.

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 anacquaintance/friend of Jerry Moore1, who had

1 As a result of his role in the murder ofLou Ferrari, Jerry Moore

was charged with and convicted by a jury of second degree murderunder Louisiana law. Jerry Moore was not present at the time ofthe murder and did not discharge the weapon. He later identifiedMontejo as the shooter. Moore was sentenced to lifeimprisonment without benefit of parole, probation or suspensionof sentence. The conviction and sentence of Moore were affirmedby the Louisiana First Circuit Court of Appeal, Docket no. 2006

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performed mechanical work on the equipment at theFerrari stores for a number of years.

Montejo drove a blue van, which was his mode oftransportation in driving Moore. The blue van wasapparently quite distinctive, with a "cattle guard" onthe front. Neighbors of the Ferraris saw Montejo’sblue van in the neighborhood the day before themurder and again at the approximate time of themurder. In fact, the blue van left the scene at a highrate of speed, along with Mr. Ferrari’s white Lincolnvehicle, stolen during the course of the robbery.2 Inaddition to the foregoing, the investigating officers andcrime scene personnel collected fingernail scrapingsfrom Lou Ferrari. Photographs were taken ofdefendant, which showed abrasions on his neck. Dr.Sudhir Sinha, an expert in molecular biology andDNA, performed the DNA testing on these scrapings.Dr. Sinha testified that the DNA in the left fingernailscrapings resulted from an intentional scratch and wasnot the result of minor contact, such as shaking hands.According to Dr. Sinha, there was a high degree ofcertainty, the chance of a random match being i in 163billion, that the DNA found in the fingernail scrapingsfrom the victim matched defendant.

Once Mr. Ferrari entered his home that afternoon,he had no means of escaping Montejo, intent on gettingthe money he wanted. The testimony of the Chief

KA 1979, and the Louisiana Supreme Court denied his writapplication.

2 A third person, Eric Gai, was identified as the other driver

leaving the scene. Mr. Gai pled guilty to manslaughter inconnection with his role in this murder.

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Deputy Coroner, Dr. Michael Difatta, established thatthe gunshot wound to Mr. Ferrari’s eye would haveresulted in almost instantaneous death, dropping thevictim "right there". The crime scene photographsshowed the position of Mr. Ferrari, demonstrating thatthe victim was cornered by Montejo when he was shotand 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. Montejoclaimed 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 original decision herein, the story he gave at trialwas the seventh version of the crime given by Montejo,which was "an elaborated variation" of the fifthversion. State v. Montejo, 974 So.2d 1238, 1248 (La.2008). Montejo had an extensive criminal history fromFlorida, with numerous convictions for crimes such astheft, burglary and armed robbery. During theinterrogation, he appeared to be a savvy ex-con, whowas trying to read the police, attempting to determinehow much they knew as he spoke with them. He gavethe police bits and pieces of information, whichgradually increased until he confessed to shooting Mr.Ferrari, although, even then, he tried to minimize hisrole and intent in the crime. As the LouisianaSupreme Court noted, the jury watched approximatelyfour hours of the videotaped police interrogation ofMontejo, "during which Montejo slowly madeincreasingly incriminating statements until he finallyadmitted that he shot the victim, who had

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unexpectedly returned home and interruptedMontejo’s burglary." Montejo, supra at 1244.

While Montejo appears to re-urge some of theissues surrounding his videotaped confession, theadmission of the videotaped confession was not atissue in the original proceeding in this Court and wasnot included in the remand order. The only evidenceat issue is the apology letter written by Montejo onSeptember 10th. The Louisiana Supreme Courtpreviously conducted an exhaustive review of thosetapes and the applicable law, finding when Montejoinitially invoked his Miranda counsel right "theinterview was terminated" and both detectives"scrupulously honored" his request. Montejo, supra at1254-55. That Court found further that Montejovalidly retracted his initial request for counsel, id. at1256, and later "validly waived his Miranda rightsbefore the resumption of the interview." Id. at 1258.

The Apology Letter, Motion to Suppress andProceedings

Defendant filed a pretrial Motion to SuppressInculpatory Statements, which alleged as follows:

Defendant moves to suppress for use asevidence all oral or written inculpatorystatements obtained from defendant by all lawenforcement officers or other agents of the Statein the above captioned and numbered cause.

All of said confessions and other inculpatorystatements are inadmissible because they werenot made by defendant to said law enforcementofficers or anyone else freely and voluntarily,

5

but were made under the influence of fear,duress, intimidation, menaces, threats,inducements, and promises, and/or withoutmover having been advised of his Constitutionalrights to remain silent, right to counsel, etc.

At the suppression hearing, defense counsel arguedthat the written apology letter should be suppressedbecause counsel had been appointed for defendantearlier that day, and since defendant was appointedcounsel, the police were prohibited from speaking withhim. Defendant did not assert to the trial court that hetold the officers he had a lawyer prior to the excursionat issue or that the officers misrepresented to him thefact that he had counsel appointed. In fact, even afterdefendant’s testimony at the end of the trial, themotion to suppress was never re-urged on the basisnow before this Court.

With respect to the letter which is at issue in thiscase, Detective Jerry Hall testified at the suppressionhearing that on the morning of September 10, 20023,this follow-up was an effort to locate the gun that hadbeen used in the crime and the money bag taken fromMr. Ferrari. The police already had Montejo’svideotaped confession. In fact, Montejo had providedthe police, during that confession, with an approximatearea where he had thrown the gun into LakePonchartrain, the largest lake in Louisiana, consistingof approximately 600 square miles. Montejo had told

3 Originally, Detective Hall referred to this contact as occurring on

September 9, 2002, but later corrected this reference to September10, 2002. The original reference to September 9 was simply anerror.

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the officers in his confession that he just went to thehome for a burglary, not murder, and that the gun heused belonged to Mr. Ferrari. Apparently, in hisattempt to further exculpate himself, he told theofficers he wanted to help them find the gun to provehe was telling the truth.

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, again readMontejo his rights, and asked Montejo if he wouldaccompany them to the bridge and assist in furtherpinpointing the area where he disposed of the gun, towhich Montejo consented, without issue.

The minute entries from this proceeding reflectthat a seventy-two (72) hour hearing, pursuant toLouisiana law, was held earlier that day, on themorning of September 10, 2002. La. C.Cr.P. art. 230.1provides that the sheriff or law enforcement officerhaving custody of an arrested person shall bring himpromptly, and in any case within seventy-two hoursfrom the time of the arrest, before a judge for thepurpose of appointment of counsel, and the judge mayalso determine or review a prior determination of theamount of bail. The minute entry from that seventy-two hour hearing provides that the defendant waspresent, and further provides that no bond was set, thedefendant, being charged with first degree murder,and the "court ordered the Office of Indigent Defenderbe appointed to represent the defendant".

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Although defendant has alleged, citing 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 and was the first time he hadever made such a claim. Detective Jerry Hall testifiedthat he asked Montejo that morning if he had beencontacted by an attorney, to which Montejo respondedthat he had not. Montejo not only did not tell theofficers that counsel had been appointed, but heunequivocally denied having a lawyer when directlyasked by Detective Hall. In fact, Montejo told thedetectives he just wanted to clear this up and neverrequested a lawyer at that time. Montejo was againprovided with his Miranda rights and again waivedsuch rights before accompanying the detectives to thelake. While in the back of the police vehicle on theway back to the jail, Montejo requested a pad and penfrom the detectives and told them he wanted to writesomething. He wrote a letter to the widow of thevictim, expressing remorse for the shooting of herhusband, which was consistent with the videotapedstatement in which he claimed that he found the gunwhile in the home and tried to use it to scare Mr.Ferrari. As the Louisiana Supreme Court found,"there is no dispute that defendant was given hisMiranda warnings and that he signed a waiver ofthese rights prior to the September 10 excursion tolook for the murder weapon, during which time hewrote the apology letter to Mrs. Ferrari." Montejo,supra at 1261. In the letter, Montejo attempts toexcuse his actions, in yet another exculpatory attempt.

As stated above, defendant’s sole argument forexclusion of the letter to the trial court was based onthe fact that counsel had been appointed to represent

him on the morning of September 10th, and using therationale of Michigan v. Jackson, 475 U.S. 625 (1986),the police were prohibited from approaching himthereafter. This Court overruled Michigan v. Jackson,holding that "Montejo’s solution is untenable as atheoretical and doctrinal matter" and that Montejo’sinterpretation of Michigan v. Jackson was "off themark". Montejo v. Louisiana, 556 U.S. -, 129 S.Ct.2079, 173 L.Ed.2d 955 (2009). This Court remandedthis case in order to allow Montejo the opportunity tocontend that his letter of apology should still havebeen suppressed under Edwards v.~Arizona, 451 U.S.477 (1981). However, the Court specifically noted thepotential procedural bar to such a review, stating thatsince "Montejo’s testimony came not at the suppressionhearing, but rather only at trial" "we are unsurewhether under state law that testimony came too lateto affect the propriety of the admission of theevidence". Montejo, supra at 2092. This issue was leftto the Louisiana Supreme Court upon remand, and forthe reasons that follow, the State submits theLouisiana Supreme Court correctly held that Montejo’sclaims herein are procedurally barred under state law,but further held the claims fail on the merits, or in thealternative, the admission of the letter constitutedharmless error.

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ARGUMENT

This Court recognized that since Montejo’stestimony came not at the suppressionhearing, but only at trial, under stateprocedural law, it may have come "too late"to affect the propriety of the admission ofthe evidence

Montejo repeatedly argues that the LouisianaSupreme Court failed to address the claims that thisCourt "instructed" it to address, and that it "ignored"the remand order of this Court. (Pet., p. i, 19, n. 10).This Court provided Montejo with the "opportunity" tocontend his letter of apology should have beensuppressed under the rule of Edwards v. Arizona, 451U.S. 477 (1981). However, Montejo neveracknowledges or addresses the basis of the ruling bythe Louisiana Supreme Court, which was recognizedby this Court in its remand order as follows:

Montejo’s testimony came not at thesuppression hearing, but rather only at trial,and we are unsure whether under state lawthat testimony came too late to affect thepropriety of the admission of the evidence.These matters are best left for resolution onremand. Montejo v. Louisiana, 556 U.S. --, 129S.Ct. 2079, 2092 (2009).

The Louisiana Supreme Court determined that,under its state procedural law, defendant’s testimonyat trial came too late for consideration as to theadmissibility of the letter because those grounds forsuppressing the evidence were available at the time,but were not asserted by defendant as a basis for

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suppression of the evidence. Montejo, supra, App. A at73A.

Montejo never raised an Edwardsargument in support of suppression of theletter prior to appeal

Montejo filed a "briefboilerplate motion to suppressall inculpatory statements" with the state districtcourt. Montejo, supra, App A at l lA. That motionalleged as follows:

Defendant moves to suppress for use asevidence all oral or written inculpatorystatements obtained from defendant by all lawenforcement officers or other agents of the Statein the above captioned and numbered cause.

All of said confessions and other inculpatorystatements are inadmissible because they werenot made by defendant to said law enforcementofficers or anyone else freely and voluntarily,but were made under the influence of fear,duress, intimidation, menaces, threats,inducements, and promises, and/or withoutmover having been advised of his Constitutionalrights to remain silent, right to counsel, etc.

At the suppression hearing, defense counsel arguedthat the written apology letter should be suppressedbecause counsel had been appointed for defendantearlier that day, and since defendant was appointedcounsel, the police were prohibited from speaking withhim. Defendant never argued, at any time, to the trialcourt that he told the officers he had a lawyer prior tothe excursion at issue or that the officers

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misrepresented to him the fact that he had counselappointed. In fact, even after defendant’s testimony atthe end of the trial, the motion to suppress was neverre-urged on that basis. Defendant’s sole argument forexclusion of the letter was the applicability ofMichigan v. Jackson, 475 U.S. 625 (1986).

The Louisiana Supreme Court, following remandfrom this Court, found that Montejo "did not presentany evidence, or argument, at the motion to suppressthat he asserted his right to counsel for Edwardspurposes on September 10, that the police lied to himabout not having a lawyer, or that the police kept himfrom seeing his lawyer". Montejo, supra, App A at33A. Moreover, with regard to Montejo’s argument onremand that he had clearly asserted his right tocounsel but was worn down by the badgering of thepolice, the Louisiana Supreme Court observed thatMontejo had previously asserted quite the opposite tothat Court. In Montejo’s brief to the LouisianaSupreme Court on original hearing, "defense counselconceded that ’[b]y Mr. Montejo’s own admission hisrequest for counsel [on September 10] was not a clearassertion or invocation of his right’". Montejo, supra,App A at 52A.

C. Louisiana procedural law has longprohibited defendants from raising newgrounds for suppressing evidence onappeal

Montejo’s assertion that the Louisiana SupremeCourt crafted a new and unique rule to apply to him iswholly without merit. Defendant argues thatLouisiana jurisprudence does not prohibit a newargument in support of suppression on appeal if the

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constitutional provision at issue is the same asoriginally raised. However, he cites no authority forthat argument, and in fact, the cases cited by theLouisiana Supreme Court, referenced below, dispelthat argument.

The Louisiana Supreme Court reviewed theapplicable Louisiana procedural rules governingsuppression motions and the review of rulings thereonby appellate courts. Montejo, supra, App A at 36A.Motions to suppress are governed by La. C.Cr.P. art703. A defendant may testify at the hearing of asuppression motion without being subject tointerrogation into other matters, and his testimonycannot be used by the state at trial, except to attackthe credibility of his trial testimony.

"Louisiana courts have long held a defendant maynot raise new grounds for suppressing evidence onappeal that he did not raise at the trial court in amotion to suppress." Montejo, supra, App A at 40A. Inreiterating this long-standing principle, the LouisianaSupreme Court cited State v. Brown, 434 So.2d 399(La. 1983), which rejected a defendant’s alternativeargument regarding the denial of his motion tosuppress because he had not raised the issue at trial;State v. Johnson, 993 So.2d 326 (La. App. 4 Cir. 2008),which held that failure to raise a ground forsuppressing evidence in a properly filed motion tosuppress waives such a basis for exclusion on appeal;and State v. Jackson, 904 So.2d 907 (La. App. 5 Cir.2005), writ denied 924 So.2d 162 (La. 2006), whichheld that a defendant is limited on appeal to thegrounds he articulated at trial, and a new basis for aclaim, even if it would be meritorious, cannot be raisedfor the first time on appeal. In Jackson, the Louisiana

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court found that while the defendant had challengedthe voluntariness of his confession, neither his writtenmotion nor the evidence presented at the motionhearing alleged that the statement was involuntarybecause of his young age or because he was sleepdeprived at the time of the statement. The defendantwas not allowed to raise these new bases forsuppression of his statement for the first time onappeal, and therefore, they were not properly beforethe appellate court. This ruling specifically contradictsMontejo’s argument that a Louisiana court has neverruled that an alternative argument based on the sameconstitutional ground has been held to constitute "newgrounds" prohibited on appeal. In that case, theconstitutional reason, i.e. voluntariness, remained thesame, but the factual argument differed, and thecourts held the new argument was barred for failure toassert the same issue to the trial court.

La. C.Cr.P. art. 841 provides that a new basis foran objection cannot be raised for the first time onappeal. The underlying principle for this rule is to"give the State adequate notice so that it may presentevidence and address the issue at trial on the motion.Because Montejo did not raise these grounds in amotion to suppress or allege facts supporting thesegrounds, the State had no need to put on evidencetending to show that defendant never made a clearassertion of his right to counsel or that the police nevermisled him". Montejo, supra. App A at 44A.

While the Louisiana Supreme Court noted thejurisprudential rule that appellate courts will reviewthe totality of the evidence presented at thesuppression hearing and trial when reviewing asuppression ruling, this rule is "not applied where the

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grounds for suppression were not asserted in themotion to suppress". Montejo, supra, App A at 46A.The Louisiana Supreme Court has "never allowed adefendant to allege facts for the first time in trialtestimony which would support a new argument forsuppression of evidence, and have a reviewing courtconsider those facts in determining whether thedistrict court should have granted a motion tosuppress on grounds that were never argued to, orconsidered by, the district court". Montejo, supra, AppA at 46A. "The entire criminal justice system willbecome chaotic if the Court allows defendants towithhold testimony which they allege is relevant to asuppression issue until the end of trial after theevidence has been admitted, then raise the issue onappeal, when the trial court has had no opportunity torule with all evidence before it." Montejo, supra, AppA at 46-47A.

While this Court overruled Michigan v. Jackson,the jurisprudence that Montejo now relies upon was inforce at the time of the filing of and hearing on themotion to suppress herein. There was nothingprohibiting Montejo from raising these issues at thattime, in order to allow the State to present evidence onthis issue. As the Louisiana Supreme Court held, if hehad such a claim, he was required to raise it in themotion to suppress. Montejo, supra, App A at 50A.

The Louisiana Supreme Court answered the queryraised by this Court in its remand, i.e. whetherMontejo’s testimony may have come too late to affectthe propriety of the admission of the evidence. UnderLouisiana procedural law, it did come too late, when henever raised these issues either in the motion tosuppress or at the hearing on that motion.

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D. Montejo did not make a clear assertion ofthe right to counsel when the officersapproached him about accompanying themon the search for the weapon, andtherefore, Edwards does not requiresuppression

Although the State asserts Montejo is procedurallybarred from asserting this issue, as detailed above, theState further asserts that the claim fails on the merits.

The testimony at the suppression hearing by thepolice officers on this issue was uncontradicted.Detective Jerry Hall testified that, on the date atissue, he asked defendant if he had been contacted bya lawyer, and defendant responded that he had not,and defendant never indicated to him that he had alawyer, never mentioned that a lawyer had beenappointed to represent him and denied having alawyer. In fact, according to Detective Hall, when heasked Montejo if he had been contacted by a lawyer,Montejo told him he did not need a lawyer and justwanted to clear this up, which is consistent withMontejo’s claims that he entered the Ferrari houseunarmed, then found the victim’s gun. Montejo hadoffered to help find the gun, presumably to help provehis version of events, which he believed would showthat he had no intent to murder the victim, because hewas unarmed when he arrived. While Montejo onlycites the testimony of Detective Hall regarding hisquestioning of Montejo as to whether he had beencontacted by a lawyer, arguing it did not contradictMontejo’s testimony, it ignores other testimony byDetective Hall in which it is clear that Montejo neverrequested counsel. Detective Hall specifically testifiedthat Montejo never told him, at any time during that

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day, that he had been appointed counsel, and Montejodid not ask for a lawyer. Accordingly, the Statesubmits that there was no evidence before the trialcourt to suggest that Montejo ever indicated, in anymanner, his "desire to deal with the police onlythrough counsel". If this Court considers defendant’sself-serving, last minute, disingenuous trial testimony,made after the admission of the evidence at issue, thenthe issue becomes a factual issue, one based on thecredibility of the witnesses, one which was neverdetermined by the trial court, because it never had theopportunity to do so since it was never raised bydefendant.

In Edwards, supra, this Court held that anaccused, having expressed his desire to deal with thepolice only through counsel, is not subject to furtherinterrogation by the authorities until counsel has beenmade available to him, unless the accused himselfinitiates further communication, exchanges, orconversations with the police. A suspect mustunambiguously request counsel. He must articulatehis desire to have counsel present sufficiently clearlythat a reasonable police officer in the circumstanceswould understand the statement to be a request for anattorney. If the statement fails to meet the requisitelevel of clarity, Edwards does not require that theofficers stop questioning the suspect. See Moran v.Burbine, 475 U.S. 412, 433, n. 4 (1986) ("Theinterrogation must cease until an attorney is presentonly if the individual states that he wants anattorney"). (Citations and internal quotation marksomitted).

"The Edwards rule -- questioning must cease if thesuspect asks for a lawyer -- provides a bright line that

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can be applied by officers in the real world ofinvestigation and interrogation without undulyhampering the gathering of information. But if wewere to require questioning to cease ifa suspect makesa statement that might be a request for an attorney,this clarity and ease of application would be lost.Police officers would be forced to make difficultjudgment calls about whether the suspect in factwants a lawyer even though he has not said so, withthe threat of suppression if they guess wrong. Wetherefore hold that, after a knowing and voluntarywaiver of the Miranda rights, law enforcement officersmay continue questioning until and unless the suspectclearly requests an attorney... If the suspect’sstatement is not an unambiguous or unequivocalrequest for counsel, the officers have no obligation tostop questioning him .... But we are unwilling tocreate a third layer of prophylaxis to prevent policequestioning when the suspect might want a lawyer.Unless the suspect actually requests an attorney,questioning may continue." Davis v. United States,512 U.S. 452 (1994).

"The likelihood that a suspect would wish counselto be present is not the test for applicability ofEdwards. The rule of that case applies only when thesuspect ’has expressed’ his wish for the particular sortof lawyerly assistance that is the subject of Miranda.It requires, at a minimum, some statement that canreasonably be construed to be an expression of a desirefor the assistance of an attorney in dealing withcustodial interrogation by the police." McNeil v.Wisconsin, 501 U.S. 171 (1991). (Citations omitted.)While defendant likens his statement to that assertedby the defendant in Minnick v. Mississippi, 498 U.S.146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), the State

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submits that the cases are not close. In Minnick, thedefendant told the police, "Come back Monday when Ihave a lawyer", and he further stated that he wouldmake a more complete statement then with his lawyerpresent.

Although the State asserts that Montejo’stestimony on this issue was not credible, his testimonydid not establish that he made a "clear request" forcounsel. Even under Montejos’ version, he only statedthat he thought he had a lawyer appointed torepresent him, not that he was expressing a desire todeal with the police through counsel, as required byEdwards. In addition, the Louisiana Supreme Courtfound that Montejo, in his original brief on appeal inthat court, had conceded that his request for counselon September 10 was not a clear assertion orinvocation of his right. Montejo, supra, App A at 52A.Montejo’s statements did not constitute a clearassertion of his right to counsel for purposes ofEdwards, and the State submits this argument fails.

E. The police did not make any intentionalmisrepresentations to Montejo regardinghis counsel and repeatedly informed him ofhis right to counsel

Montejo’s arguments regarding alleged intentionalmisconduct by the police are completely based uponthe truth and veracity of his testimony. The policeunequivocally testified that Montejo told them he didnot have a lawyer, and he was repeatedly advised ofhis right to counsel, which he repeatedly waived.There is no evidence to suggest that Det. Hall knewthat counsel had been appointed earlier that day torepresent Montejo, and in fact, Det. Hall testified he

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did not know of the appointment of counsel. Inaddition, Montejo’s characterization of Montejo’scounsel walking through the front door while the policetook Montejo out the back door is without merit andunsupported by the record. It was not until theofficers returned to the jail with Montejo that theywere notified that Montejo’s counsel was trying toreach him, and when contacted, the police promptlymet Montejo’s counsel. The officers did not preventMontejo’s counsel from meeting with him. Typically,the trial court would have determined any credibilityissues, but Montejo never allowed it to do so on thisissue, because he never raised this issue before thetrial court.

This alleged conduct is certainly not the "egregious"police misconduct referenced by the Court in Moran v.Burbine, 475 U.S. 412 (1986), nor does such conductconstitute "intentional" or "affirmative" misrep-resentations, as described by Montejo in his Petition.As this Court recognized in its opinion herein, "[p]olicewho did not attend the hearing would have no way toknow whether they could approach a particulardefendant; and for a court to adjudicate that questionex post would be a fact-intensive and burdensometask". Montejo, supra at 129 S.Ct. 2084.

The September 6th confession by Montejowas not at issue when this case wasoriginally before this Court and was not atissue in the remand, and accordingly, it isnot properly before this Court

The only issue before this Court originally was theadmission of the apology letter written by Montejo onSeptember 10th. The issues surrounding his

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videotaped confession on September 6th were notpreviously before this Court and were not part of theremand by this Court. This Court specifically statedin its opinion that Montejo "should be given anopportunity to contend that his letter of apology shouldstill have been suppressed under the rule of Edwards".Montejo v. Louisiana, 556 U.S. ---, 129 S.Ct. 2079, 2091(2009). In accordance with the remand, it was theadmission of the letter of apology that was before theLouisiana Supreme Court, not the videotapedconfession.

Now, Montejo seeks to argue the merits of theadmission of the September 6th statements, and theState submits that issue is not properly before thisCourt. The Louisiana Supreme Court previously ruledon this issue in its original opinion, and no furtherreview of that issue was sought before this Court.

G. Harmless Error

Although the State submits that the trial courtproperly denied defendant’s motion to suppress, theerroneous admission of a confession is a trial errorwhich is subject to a harmless error analysis. TheState submits the jury had sufficient other evidencebefore it to render the verdict surely unattributable tothis alleged error. The jury heard the videotapedconfession of Montejo, which admissibility was upheldby the Louisiana Supreme Court and, as stated above,was not an issue before this Court. In addition, thecorroborating evidence was substantial.

The State submits any error in admitting the letterat issue was harmless in light of the other evidencepresented to the jury at trial, including the "properly

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admitted videotaped confession, Montejo’s ownincredible trial testimony, the eyewitnesses who sawMontejo’s car flee the vicinity of the crime, evidence ofthe proceeds of the crime found on Montejo and Gai,the testimony concerning motive, and the presence ofMontejo’s DNA under the victim’s fingernails which anexpert testified was the result of the victimintentionally scratching the defendant". Montejo,supra, App A at 71-72A.

The Louisiana Supreme Court agreed that any sucherror was harmless, noting that while the letter wasintroduced in the State’s case in chief, references to theletter by the State were minimal and more akin toimpeachment, whereas the defense referred to theletter at length in an attempt to diminish thecredibility of the police. The Louisiana Supreme Courtfound the letter was inconsequential in comparison tothe other evidence, and any error in its admission washarmless beyond a reasonable doubt.

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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 Record

WALTER P. REED, District AttorneyHOUSTON C. GASCON, IIISCOTT C. GARDNERPost Office Box 82659Baton Rouge, LA 70884Telephone: (225) 766-0023Kathilandry@aol.com

Counsel for Respondent,State of Louisiana