author: b COOKS, Judge. _JjEZELL, J.,

text:
    John C. McMULLEN and Melanie J. McMullen v. CITY OF SULPHUR.
    No. 03-290.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.
    David F. Dwight, Lake Charles, LA, for Plaintiffs/Appellants, John C. McMullen and Melanie J. McMullen.
    Robert A. Robertson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, City of Sulphur.
    Court composed of NED E. DOUCET, Chief Judge, ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, OSWALD A. DECUIR and BILLY H. EZELL, Judges.
   b COOKS, Judge.

This appeal arises from a dispute over the existence of a servitude over a lot located in the Forest Hills Subdivision in Calcasieu Parish. John C. McMullen and his wife, Melanie, purchased the property in question from John’s father, William McMullen, and were interested in building a home on the lot. However, when they attempted to secure financing to build on the land, the lending institution informed the McMullens they would not loan any funds on property built over an easement. A sewer line ran diagonally underneath the lot. The McMullens filed suit against the City of Sulphur asking for damages to their property from the sewer line and requesting the City move the sewer line.

The city filed a motion for summary judgment which was denied, and the matter proceeded to trial. The trial court ruled in favor of the City, finding that the public records clearly evidenced the servitude over the lot and it was incumbent on the person purchasing the property to determine if there were any encumbrances on the property. The plaintiffs claims were dismissed, which precipitated this appeal. For the following reasons, we reverse and remand.

ANALYSIS

The McMullens purchased the property at issue from William H. McMullen (John’s father) by Cash Deed on March 26, 1995. The legal description of the property at issue is:

| .¿Lot 15 of Block “A” of Forest Hills Subdivision Unit 1, a Subdivision as per plat Recorded in plat book 10, page 24, records of Calcasieu Parish, Louisiana.

John McMullen did not obtain an abstract on the property following the purchase.

The McMullens have continued to claim “the public records of Calcasieu Parish include no grant of servitude whatsoever nor any other title document to support or otherwise allow the defendant City of Sul-phur to maintain this sewer line across the McMullen property.” The City disagrees and referenced at trial an abstract which contained a signed right of way by plaintiffs’ predecessor in title granting the City of Sulphur the right and privilege to “lay, construct, maintain and operate a sewer line” on the property as follows:

Approximately 10 feet east of and along the east bank of the drainage ditch forming the west boundary and extending across Lot 15, Block “A” of Forest Hills Subdivision. (Emphasis added.)

This right of way, dated August 31, 1963, was filed in the public registry on October 29,1963.

The trial court, in oral reasons for judgment, cited Collins v. Slocum, 284 So.2d 98 (La.App. 3 Cir.1973), as support for its decision. In Collins the former owner of the property in question granted a pipe line right of way, which was timely filed in the public records. The property was sold by the former owner to his son, who then sold the property to a company to subdivide the property into residential lots. The plaintiff in Collins purchased one of the subdivided lots and was in the process of building a house on the lot when he was instructed by the pipe line company that he would have to move his structure from the lot. The plaintiff sued, among others, the pipe line company Land alleged, in relevant part, it failed to delineate, mark, warn and keep under surveillance the pipe line servitude. The pipe line company filed an exception of no cause of action urging it did not owe the duties alleged by the plaintiff. The trial court sustained the exception and the plaintiff appealed. This court found the pipe line right of way was properly recorded and “anyone building on the right of way servitude did so at his peril.” Id. at p. 100. Significantly, it found “[t]he pipe line servitude was not limited to any portion of the property described and therefore, Humble had the right to lay the pipe line at any point it chose.” Citing La.Civ.Code art. 779 (La. Civ.Code art. 750), the court noted:

If the manner in which the servitude is to be used is uncertain, as if the place necessary for the exercise of the right of passage is not designated in the title, the owner of the estate which owes the servitude is bound to fix the place where he wishes it to be exercised.

Id. at p. 100.

Only in this instance does the grantor bear the burden of marking or delineating the “place” he desires the servitude to be exercise.

It is undisputed the City was granted a servitude affecting the property. The public record evidences a right was granted to the City to maintain and operate a sewer line on the property located “[a]p-proximately 10 feet east of and along the east bank of the drainage ditch forming the west boundary and extending across Lot 15 ...” The “place” of the servitude was designated. The City argues the language “extending across Lot 15” supports the placing of the sewer line diagonally across the lot. We disagree. As depicted on the map reproduced below, the drainage ditch forms the west boundary of the lot and extends (north to south) across Lot 15, Block A of Forest Hills Subdivision.

_k SURVEY PLAT

The “and extending across” refers to the subject “ditch.” If we were seated in an English class and the teacher instructed us to read the at issue passage and then asked “what forms the west boundary and extends across lot 15?” And we all replied Lot 15, she would not be pleased. This is the answer the City of Sulphur says is correct in this case. To give the City a passing grade we also would have to delete or assign no meaning to the phrase “10 feet east of and along the east bank of the drainage ditch.” The sketch above reflects at all points to the immediate north of plaintiffs’ property the city’s sewer line runs approximately 10 feet along the boundary of the ditch and at all points south of plaintiffs’ property line throughout the entire subdivision development the sewer line runs in the same manner. Only on plaintiffs’ property does it fail to follow the drainage ditch and streaks across it to connect with a sewer manhole located at the dead end of Diane Lane and plaintiffs’ lot.

| sGood grammar forbids us from interpreting the document in the manner the City advances; the codal articles prevent us from enlarging the servitude to correct the obvious failure of the City to acquire a right of way that allowed it to travel the shortest distance to the existing sewer manholes. La.Civ.Code art. 730 provides “[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” The comments to that article state in pertinent part as follows:

(b) It is a cardinal rule of interpretation that, in case of doubt, instruments purporting to establish predial servi-tudes are always interpreted in favor of the owner of the property to be affected. The rule incorporates into Louisiana law the civilian principle that any doubt as to the free use of immovable property must be resolved in favorem libertatis. See Domat, Les lois civiles dans leur ordre naturel, 1 Oeuvres de Domat 329 (ed. Remy 1828); 2 Toullier, Droit civil fran-caisl92 (1833). The Louisiana Supreme Court has repeatedly declared that “ser-vitudes are restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law.” Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited with approval in Buras Ice Factory, Inc. v. Department of Highways, 235 La. 158, 103 So.2d 74 (1958). See also McGuffy v. Weil, 240 La. 758, 767, 125 So.2d 154, 158 (1960): “any doubt as to the interpretation of a servitude encumbering property must be resolved in favor of the property owner”. The rule that the proper interpretation of an ambiguous instrument is that which least restricts the ownership of the land has been applied by Louisiana courts in a variety of contexts. See, e.g., Whitehall Oil Co. v. Heard, 197 So.2d 672 (La.App. 3rd Cir.), writ refused, 250 La. 924, 199 So.2d 923 (1967) (determination of the question whether a landowner created a single servitude over contiguous tracts or a series of multiple interests).

Allowing the City to change the “place” of the servitude is not an option; and, even if we were to find the servitude is ambiguous, the City’s decision to place it across plaintiffs’ property was made at its peril.

| ¿DECREE

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings. Costs of this appeal are assessed against appellee, the City of Sulphur.

REVERSED AND REMANDED.

EZELL, J., dissents and assigns reasons.

_JjEZELL, J.,

dissenting.

This is a case where a son purchases a lot from his father and neither checked the public records to see if the property was encumbered by a servitude. The record is clear that the father, William McMullen, was very familiar with the subdivision in which Lot 15 was located. Mr. William McMullen had built approximately 150-200 homes within this particular subdivision. When William purchased this lot in question, he also purchased two other lots adjacent to the lot involved in this suit. The record reflects that William McMullen became aware of the sewer line in the early 90's. It is also clear that William McMul-len was aware of the manhole covers at the southeast corner of Lot 15 and the one close to the northwest corner of Lot 15.

William McMullen was the successor in title to Lot 15, by way of a cash deed, signed on March 26,1995. He never had a title check done on the property, but at page 37 of the record he admits that he knew about both manhole covers before he purchased the property. It is also clear that this was a switch of his testimony from page 25 of the record, where he denied knowing about the northwest manhole cover. The change in his testimony was prompted by cross-examination, when the attorney for the City of Sulphur told him his father was going to testify differently. The 12attorney did not lie.

The majority of the opinion that the servitude, which was dated August 31, 1963, and filed in the public record on October 29, 1963, does not put the Plaintiffs on notice that they have a servitude that “extends across” Lot 15 of Block “A” of Forest Hills Subdivision. I do not agree with that opinion. The opinion of Collins v. Slocum, 284 So.2d 98 (La.App. 3 Cir.1973), is still good law and should be followed in this case. The City in this case was given a servitude which allowed them to cross Lot 15, and it did not have to delineate where they were going to cross Lot 15. The public records are there to put those who are purchasing property on notice that the property they are about to purchase has a title default or may be encumbered by a servitude. This case is no different than that which was presented in the Collins case. I might also point out that this suit was a suit for trespass, and it is clear that the City had the right to have a sewer line run across Lot 15.

We are not in an English class, and I am not sure that I would answer Judge Cooks’ question with a reply of “Lot 15.” However, if the Plaintiff had taken the time to find the servitude in the public records and read the description and knew that there was a manhole cover close to the northwest corner and another manhole cover at the southeast corner, then they would certainly be put on notice that the servitude extended across Lot 15. The failure on the part of the purchasers, father and son, to even check the public records is the problem in this case not the description given in the properly filed servitude.

For these reasons, I must respectfully dissent from the majority opinion.

      . We were informed at oral argument that plaintiffs have sold the property since the trial court’s decision. The City has filed an exception of no right of action on appeal attacking plaintiffs' right to proceed with this litigation. La.Code Civ.P. art. 2163 provides that this court can consider an exception of no right of action for the first time on appeal if it is “pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” There is nothing in the record to prove the City’s allegation, although plaintiffs acknowledged at oral argument they no longer own the property. On remand, the City will have opportunity to reurge the exception.


source: Caselaw Access Project

author: 11 THIBODEAUX, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brian Keith POULLARD.
    No. 03-940.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 2003.

      James Edward Beal, Jonesboro, LA, for Defendant/Appellant, Brian Keith Poul-lard.
    Earl B. Taylor, District Attorney, Opel-ousas, LA, for Plaintiff/Appellee, State of Louisiana.
    Brian Keith Poullard, St. Gabriel, LA, Pro se.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   11 THIBODEAUX, Judge.

The Defendant, Brian Keith Poullard, appeals his second degree murder conviction by a jury on the basis that the trial court improperly admitted into evidence an inculpatory statement made to a law enforcement officer. The statement should have been suppressed, he argues. While we agree that the statement, “f — k you, I’ll do the same thing to you and uh — if I don’t do it myself, I can call someone to do it while I’m in jail,” was erroneously admitted after the Defendant invoked his right to counsel, the error was harmless in light of the overwhelming evidence of guilt against the Defendant. We, therefore, affirm the Defendant’s conviction and sentence.

FACTS

The Defendant was arrested for the murder of Gerald Lee Guidry on November 30, 2001 at Mr. Guidry’s used car lot in Opelousas. After his arrest, the Defendant was immediately Mirandized by Deputy Ryan Young. He was brought to the Eunice Police Department. A videotape made in the booking room is somewhat unclear, but it appears the Defendant told Officer Stagg “no lawyer, can’t talk.” Officer Stagg informed the Defendant that he did not have to discuss the incident. Officer Tony Kennedy then read the Defendant his rights and continued to talk about an unrelated incident.

After the Defendant was taken to a holding cell, Lieutenant Varden Guillory of the Eunice Police Department approached him and asked “why he didn’t feel any remorse for what he did — for taking a person’s life.” The Defendant, according to Lieutenant Guillory, responded by saying, “f — k you, I’ll do the same thing to you and uh — if I don’t do it myself, I can call someone to do it while I’m in 1 ¿jail.” Lieutenant Guillory did not Mirandize the Defendant before speaking to him because he intended only to have a “casual conversation” with the Defendant.

The trial court concluded the statement was made freely and voluntarily. It refused to suppress the statement and observed that five Mirandized rights forms had been executed within a short period of time by the Defendant.

LAW AND DISCUSSION

A trial judge’s ruling on whether or not a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Thornton, 351 So.2d 480, 484 (La.1977). Before a confession may be introduced into evidence, the state must establish that the accused was advised of his constitutional rights under Article 1, Section 13 of the Louisiana Constitution and the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Simmons, 443 So.2d 512 (La.1983). In Miranda, the United States Supreme Court recognized the coercive atmosphere created by police custody and established a procedural mechanism to safeguard the exercise of a defendant’s Fifth Amendment rights. Before interrogating a suspect in custody, law enforcement officials must inform the suspect that he has the right to remain silent, that his statements may be used against him at trial, that he has a right to an attorney, and that if he cannot afford an attorney, one will be appointed for him.

Even when a defendant has not expressly invoked his rights under Miranda, “[t]he courts must presume that a defendant did not waive his rights.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). A waiver is not established by showing that a defendant was given the complete Miranda warnings and thereafter gave an incriminating statement. 2 Wayne R. LaFave, Jerold Israel, Nancy King, Criminal Procedure, § 6.9(d). Moreover, it is well-settled that a “heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980).

State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537.

[¡¡When ... a defendant has expressly waived his Miranda rights, the question becomes “whether the purported waiver was knowing and intelligent ... under the totality of the circumstances.” Abadie, supra, 612 So.2d [1] at 5 [ (La.), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993)], quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983). This “totality of the circumstances” includes “the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Solem v. Stumes, 465 U.S. 638, 647, 104 S.Ct. 1338, 1344, 79 L.Ed.2d 579 (1984), quoting Butler, supra, 441 U.S. at 374-375, 99 S.Ct. at 1757-1759. See also State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); re’hg denied, 474 U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d 567 (1985) (diminished intellectual capacity of defendant only a factor to be considered in determining whether Miranda waiver knowing and intelligent).

In reviewing the correctness of a trial judge’s ruling on a motion to suppress a confession, “we are not limited to the evidence adduced at the hearing(s) on this motion, but rather may consider all pertinent evidence adduced at trial.” State v. Brooks, 92-3331, p. 10 (La.1/17/95), 648 So.2d 366, 372, citing State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979) (listing cases).

State v. Green, 94-0887, pp. 10-11 (La.5/22/95), 655 So.2d 272, 280-81, writ denied, 00-3351 (La.8/24/01), 795 So.2d 339.

Defendant’s Understanding of His Rights

The Defendant alleges his statement to Officer Guillory should have been suppressed because he did not understand his rights when they were read to him by Detective Young. Testimony at the hearing on the Motion to Suppress indicated Detective Young Mirandized the Defendant at the time he was arrested. Detective Young testified at trial regarding the Defendant’s understanding of his rights as follows:

A. I told him he had the right to remain silent, anything you say may could — would be used against him in a court of law, he had the right to have an attorney present before and during any questioning. If he decided to answer ^questions now without an attorney present, he had the right to stop answering questions any time until an attorney was present.
Q. And did he give you any indication that he understood fully what you said?
A. The defendant was making comments. I was not sure what exactly he was saying. He was — his attitude was very excited. I wouldn’t say violent, but excited. And I don’t know if he fully understood what was told to him, but it was told to him in a plain manner where it should have been understood by any reasonable person.
Q. And in that situation, at that time you felt he was a reasonable person? A. I felt that he should have understood what he was told, yes, ma’am.

Based on this testimony we cannot say that the Defendant understood his rights when he was Mirandized by Detective Young. However, Officer Kennedy Mir-andized the Defendant shortly after he arrived at the Eunice Police Department and the video tape indicates the Defendant stated he understood those rights. The Defendant was also Mirandized by Deputy Vernon Marks who testified that the Defendant indicated he understood his rights and signed a waiver of rights form. The Defendant had been advised of his rights three times before he spoke to Officer Varden Guillory. The Defendant has not presented evidence that he did not understand his rights when he was informed of them by Officer Kennedy and Deputy Marks.

Failure of Officer Guillory to Mirandize the Defendant

The Defendant alleges that his statement to Officer Varden Guillory should have been suppressed because Officer Guillory did not Mirandize him.

This court has held that Miranda rights need not be repeated before each interrogation. State v. Bolden, 95-749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, writ denied, 96-1272 (La.11/22/96), 683 So.2d 286, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 799 (2000); State v. Bordelon, 597 So.2d 147 (La.App. 3 Cir.), writ denied, 600 So.2d 678 (La.1992).

The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Abadie, 612 So.2d [1] at 6 [(La.1993)] (citing [Rhode Island v.] Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90).

State v. Payne, 01-3196, p. 14 (La.12/4/02), 833 So.2d 927, 938.

Although Officer Guillory testified that he went to the Defendant’s cell in order to have a “casual conversation,” the question by Officer Guillory was reasonably likely to elicit an incriminating response and was the functional equivalent of interrogation.

The Defendant had been Mirandized on three previous occasions, the last time being at 2:02 p.m. The statement at issue made by the Defendant to Officer Guillory occurred at approximately 4:00 p.m. Officer Guillory was not required to Miran-dize the Defendant before speaking to him inasmuch as there had not been a significant break in the interrogation process. In Bordelon, 597 So.2d 147, this court held that police were not required to readvise a defendant of his Miranda rights when questioning him a second time eleven hours after initial interrogation during which his rights were read.

“No Lawyer, Can’t Talk”

During the booking process, the Defendant said what sounded like “I can’t talk without my lawyer,” made several unintelligible comments about the law, and then said “no lawyer, can’t talk.”

IfA defendant’s right to counsel is guaranteed in LSA Const, art. I, § 13. When counsel is requested, interrogation must cease; officials may not reini-tiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990). If before or during interrogation an accused asks for counsel, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated, custodial interrogation even if he has been advised of his rights. Such an accused is not subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981).

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

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

The applicability of the “ ‘rigid’ prophylactic rule” of Edwards requires courts to “determine whether the accused actually invoked his right to counsel.” Davis v. United States, 512 U.S. [452] at 458, 114 S.Ct. [2350] at 2355[, 129 L.Ed.2d 362 (1994)] (emphasis in original) (citations omitted). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Davis, 512 U.S. at 458-459, 114 S.Ct. at 2355. Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis, 512 U.S. at 459, 114 S.Ct. at 2355 (citation omitted). If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the cessation of questioning is not required. Id. (emphasis in original). The suspect must articulate his desire to have counsel present with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id.

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

l7Custodial Interrogation

The State submits that the comment invoking the right to counsel occurred during the booking procedure and not during an interview and was made to Officer Stagg who did not take a statement from the Defendant.

“Because the presence of both a custodial setting and official interrogation is required to trigger the Miranda right-to-counsel prophylactic, absent one or the other, Miranda is not implicated.” Payne, 833 So.2d at 934.

[T]he Supreme Court in Miranda explained what is meant by custodial interrogation: “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Rhode Island v. Innis, 446 U.S. at 298, 100 S.Ct. at 1688 (citing Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612)(emphasis added).

Id.

In State v. Dotson, 98-926 (La.App. 3 Cir. 11/24/99), 747 So.2d 686, writ denied, 99-3616 (La.3/17/00), 756 So.2d 1142, this court concluded that the defendant invoked her right to counsel when she asked an officer to contact a specific attorney on her behalf and did not tell other officers that she had requested an attorney when she was read her rights prior to being questioned.

The Defendant’s comments regarding a lawyer were made not while he was being interrogated, but during the booking process. However, based on Dotson, a defendant can invoke the right to counsel prior to being interrogated.

Invocation of the Right to Counsel

In State v. Kelly, 95-1663, p. 6 (La.App. 3 Cir. 5/8/96), 677 So.2d 495, 499, the defendant stated, “After all this here, do I still get a lawyer.” This court found that the statement was not a request for the immediate presence of an attorney. pin Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court held that an equivocal or ambiguous statement, such as “maybe I should talk to a lawyer,” was insufficient to constitute an invocation of the right to counsel. In State v. Boudreaux, 597 So.2d 1235 (La.App. 3 Cir.), unit denied, 609 So.2d 223 (La.1992), the state argued the defendant said, “Since you are trying to stick it all on me, I might as well get an attorney.” Defense counsel argued the defendant stated, “I might have to get an attorney.” This court concluded that based on these comments there was no indication that the defendant requested the immediate presence of an attorney or that he desired the interview to cease. In Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir.2002), the United States Fifth Circuit Court of Appeals, sitting en bane, analyzed several cases dealing with the issue of what is required for an unequivocal invocation of the right to counsel; it concluded that Soffar did not unambiguously invoke his right to counsel when he asked “whether he should get an attorney; how he could get one; and how long it would take to have an attorney appointed.”

This case is distinguishable from the above cases. Defendant said “no lawyer, can’t talk.” Additionally, it appears Defendant said “I can’t talk without my lawyer.” These comments show the Defendant unequivocally invoked his right to counsel.

[0]nce a suspect invokes the Miranda right to counsel for interrogation regarding one .offense, he may not be re-approached regarding any offense unless counsel is present. McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991), citing Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
Therefore, once a suspect asserts his Miranda right to counsel, not only must the current interrogation cease, but he may not be approached in connection with any further criminal investigation until his counsel is present. McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991). And if the police do subsequently l9initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. Id.

State v. Abadie, 612 So.2d 1, 5 (La.), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993).

When a defendant invokes his Miranda right to counsel, the admissibility of his subsequent confessions under federal law is to be determined by a two-step analysis: it first must be asked whether defendant “initiated” further conversation, and if the answer is yes it then must be inquired whether defendant waived his right to counsel and to silence, “that is, whether the purported waiver was knowing and intelligent * * * under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983); See LaFave & Israel, § 6.9, at 538.

Id.

The video tape reveals that after the Defendant’s comments about a lawyer, Officer Stagg continued to talk to the Defendant about booking information and told the Defendant that he did not have to talk about his case. Questioning the Defendant regarding booking information does not violate the Defendant’s invocation of his right to counsel. Louisiana Code of Criminal Procedure Article 228 required the arresting officer, Officer Stagg, to obtain booking information from the Defendant.

Officer Kennedy testified that he heard the Defendant say “no lawyer, can’t talk” and admitted that when a person in custody makes comments like those made by the Defendant, the procedure is to not talk to him. However, when Officer Kennedy began to question the Defendant about an unrelated matter, he then Mirandized the Defendant and continued to speak to him about the unrelated matter.

| ^Inasmuch as the Defendant asked for counsel and Officer Kennedy reapproached the Defendant regarding an unrelated matter when counsel was not present, the Defendant’s statements are presumed involuntary and inadmissible although Officer Kennedy testified that the Defendant signed a waiver of rights form. Furthermore, the Defendant did not initiate the conversation at issue.

In Dotson, 747 So.2d 686, this court explained whether a defendant’s invocation of the right to counsel was imputable to other officers involved in the case as follows:

In U.S. v. Lenfesty, 923 F.2d 1293, 1297 (8th Cir.1991), the court stated that “[kjnowledge of a suspect’s request for counsel made to one officer is imputed to all the other police officers involved in the case.” Also, in State v. West, 408 So.2d 1114, 1121 (La.1982), our supreme court stated:
A defendant deals with the police as a single entity. He is not required to differentiate among city, parish or state officials, or officers who might have been working another shift when his attorney instructed that he not give any statements. Once the defendant has “... expressed his desire to deal with the police only through counsel,” Edwards v. Arizona, supra, at 484, 101 S.Ct. at 1885, all successive officers who deal with the defendant are held to have knowledge of this fact.
(Emphasis added.) See also State v. Trevathan, 414 So.2d 316 (La.1982). Later, in State v. Arceneaux, 425 So.2d 740 (La.1983), the Louisiana Supreme Court reasserted the essence of its holding in West. In Arceneaux, when interrogated by Officer McCann of the Sulphur Police Department, the defendant stated that he wanted to talk to an attorney. Questioning ceased, but later, Officer Steach of the Calcasieu Parish Sheriffs Office, unaware of the defendant’s request for counsel, obtained an oral confession from the defendant. The defendant refused to give a written statement, saying that he wanted to talk to an attorney. Once again, questioning ceased. The court stated:
|n[I]t is of no moment that Steach did not know of defendant’s request for counsel. Good faith is not relevant because once the defendant has expressed his desire to deal with the police only through counsel, all successive officers who deal with the defendant are held to have knowledge of this fact.
Id. at 744 (emphasis added). Thus, the court found the statement to Officer Steach to be inadmissible.
We read West and Arceneaux in the context of Arizona v. Roberson, 486 U.S. 675, 687-88, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988), where the United States Supreme Court stated:
Finally, we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. In addition to the fact that Edwards focuses on the state of mind of the suspect and not of the police, custodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an ofñcer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel. In this case respondent’s request had been properly memorialized in a written report but the officer who conducted the interrogation simply failed to examine that report.... The police department’s failure to honor that request cannot be justified by the lack of diligence of a particular officer.

(Emphasis added.)

Id. at 693.

Alter the Defendant spoke to Officer Kennedy, he was interrogated by Deputy Marks. The Defendant signed a waiver of rights form before being questioned by Deputy Marks. The Defendant was then brought to a holding cell where Officer Guillory initiated a “casual conversation” with the Defendant.

The video tape reveals that Officer Kennedy reapproached the Defendant regarding the unrelated offense. Furthermore, nothing in the record indicates the Defendant initiated the questioning by Deputy Marks or Officer Guillory. Based on | ^Dotson, the Defendant’s invocation of his right to counsel was imputed to all officers involved in the case including Deputy Marks and Officer Guillory.

Inasmuch as the Defendant invoked his right to counsel, and the fact that his invocation of the right to counsel is imputed to all other officers, the statement made by the Defendant to Officer Guillory should have been suppressed.

Harmless Error

“[T]he erroneous admission of a confession is a trial error which is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991).” State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, 129, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Accordingly, this court must determine whether the admission at trial of the Defendant’s statement, “F — k you, I’ll do the same thing to you and uh — if I don’t do it myself I can call someone to do it while I’m in jail,” was so prejudicial to the Defendant that it constituted reversible error.

Erroneous admission of evidence requires reversal only where there is a reasonable possibility that the evidence might have contributed to the verdict. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, 391 So.2d 421 (La.1980). The relevant inquiry is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, Chapman, supra, i.e. was the guilty verdict actually rendered unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

State v. Casey, 99-0023, p. 13 (La.1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The Defendant was found guilty of second degree murder, a violation of La.R.S. 14:30.1, which provides as follows:

A. Second degree murder is the killing of a human being:
113(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

In order to convict the Defendant of second degree murder, the State had to prove the following:

1) the Defendant killed Gerald Guidry and that he had the specific intent to kill or inflict great bodily harm upon Gerald Guidry; or
2) the Defendant killed Gerald Guidry and the offense occurred while the Defendant was engaged in the perpetration of some type of robbery or attempted robbery.

Brian Miller, a Navy recruiter, testified the Defendant went to his office in Opelou-sas on November 30, 2001 at 11:00 a.m. and left at 11:20. The Defendant was driving a burgundy Buick which was the same vehicle as that shown in State’s exhibit 26. The Defendant was alone at that time. The Defendant was wearing a wind suit. The pants were black and the top was a pattern of white and black, but mostly black, and a “doo rag” on his head.

On November 30, 2001, Jimmy Stephen Richard stopped at Hollier Equipment in Opelousas at approximately 12:30 p.m. Cars Etc., Mr. Guidry’s car lot, was located across the street from Hollier Equipment. The two businesses were separated by a four-lane highway with a turning lane. Mr. Richard glanced across the street and saw Mr. Guidry talking to a medium sized black male. Mr. Richard then proceeded to place a part on a piece of equipment he was hauling. He subsequently heard a loud popping noise. At that time, Mr. Richard turned toward Mr. Guidry’s lot and saw a black male with a pistol in his hand shooting at Mr. Guidry. It appeared to Mr. Richard that the person firing shots at Mr. Guidry was hopping backwards. I uMr. Richard testified that it would be his interpretation that Mr. Guidry was lunging forward and the shooter was jumping back. Mr. Richard testified that there were probably four or five shots fired. He lost sight of the two men for a “split moment” and after a “brief moment” he saw the black male get up and walk calmly toward his car, putting the gun in his pants. The black male got in his burgundy Buick and drove toward Eunice.

Mr. Richard then ran into Hollier Equipment and yelled for someone to call 911. He then went to the car lot accompanied by Tommy Hollier and Stephen Powell. When Mr. Richard approached Mr. Guidry, Mr. Guidry’s wallet was laying open on the ground. Mr. Richard observed a bullet hole in the top of Mr. Guidry’s head.

Mr. Richard testified that the black male appeared to be the same size as he was, and Mr. Richard testified he was 5'10" tall and weighed one hundred sixty pounds. Mr. Richard recalled giving a written statement indicating the shooter was “very tall, very tall, a black male, dark complexion, about six feet three.” Mr. Richard testified that the black male was wearing a black rag on his head. Mr. Richard could not positively identify the Defendant because he did not have the rag on his head in the lineup and Mr. Richard did not get a good look at the shooter’s face.

Mr. Richard did not feel the Buick belonged to the car lot because it was parked outside the pipe railing that enclosed all cars on the lot. To Mr. Richard’s knowledge, there was no one else on the lot and he did not see anyone else in the Buick.

Keith Fontenot testified that he was employed at Hollier Equipment on November 30, 2001. Mr. Fontenot was in the “porch room” on the side of the building when he heard four to six popping noises. He then heard Jimmy Richard 11KyeIIing that someone had been shot. Mr. Fontenot walked to the door and saw a black male get in a maroon or burgundy colored car and drive west on Highway 190. Mr. Fontenot saw no one else in the vehicle. Mr. Fontenot testified that the black male was wearing something on his head. Mr. Fontenot did not see a weapon in the black male’s hand.

State Trooper Kevin Guillory testified that on November 30, 2001 at approximately 12:15 or 12:30 p.m. he and Trooper David Anderson were in a State Police unit headed west on Highway 190. Trooper Anderson was driving at that time. As the two passed Mr. Guidry’s car lot, Trooper Guillory saw a black male standing in the driveway of the lot. Trooper Guillory testified that the black male “stared right at” him, that the two made eye contact, and he thought that was unusual. The black male was standing alone near a maroon Buick. Trooper Guillory described the person he saw as a “black male around age uh — early twenties, with a black hood pulled over his head.” Trooper Guillory testified that the black male also made eye contact with Trooper Anderson and the two commented about this as they drove. The two dropped a motorcycle off at Trooper Guil-lory’s residence and left to return to Troop I in Lafayette. When the two passed Mr. Guidry’s lot on the return trip approximately fifteen minutes later, they saw emergency vehicles at the lot.

Trooper Guillory identified the car in State’s exhibit 26 as the car he saw parked at the entrance of Mr. Guidry’s lot. Trooper Guillory indicated the person in State’s exhibit 28, a photograph of the Defendant, was the “subject with the same clothing that we witnessed at the parking lot.” Even though the black male had a hood on, Trooper Guillory could tell the man had a small Afro. Trooper Guillory identified the Defendant in a photo lineup that occurred on December 5, 2001. No |1fione suggested that he choose the Defendant from the lineup and Trooper Guillory had no doubt that the Defendant was the man he saw at the car lot.

Trooper David Anderson testified he was on duty on November 30, 2001. Trooper Guillory called his attention to an individual at the car lot. Trooper Anderson noticed the person had on a “dark colored like a pullover, like a sweatshirt deal with a hood on it.” The person was a black male. Trooper Anderson was shown a photo lineup on December 6, 2001. State’s exhibit 28, a photograph of the Defendant, was the same person he chose from the photo lineup. The car shown in State’s exhibit 26 was similar to the vehicle parked at Mr. Guidry’s lot. Trooper Anderson had no doubt that the Defendant was the person he saw at Mr. Guidry’s lot. Trooper Anderson agreed that he described the man as a “black male, was approximately 5'9"/5'10", 150 to 165, medium build” in his statement to police.

Detective Rene Speyrer with the St. Landry Parish Sheriffs Office was the first officer on the scene. He arrived at 12:47 p.m. When Detective Speyrer arrived, Mr. Guidry’s wallet was lying open on the ground. Detective Speyrer got a description of the suspect and the vehicle from Jimmy Richard. The description indicated the suspect was a “tall dark complected black male” driving a “maroon or burgundy mid-sized Buick automobile.” Detective Speyrer also received information that the suspect had a black “doo rag” on his head. Detective Speyrer radioed the description into his office and indicated that the vehicle was headed west on Highway 190. Detective Speyrer phoned the Eunice Police Department and gave the description of the suspect and the vehicle to Ronnie Valenta.

Cliff Veillon was employed by the Eunice Police Department on November 30, 2001. On that day, Veillon was looking for a “late model Buick, 4-door, maroon in color, driven by a black male possibly wearing a stocking cap on 117him.” The log sheet indicated that at 1:05 p.m. Veillon saw a vehicle traveling west fitting the description given. Veillon followed the vehicle until he could get backup. The vehicle made a left turn and pulled over. Veil-lon then got out of his vehicle with his gun drawn and ordered the driver out of the car. The driver got out of the car and asked Veillon what he wanted. Veillon then told the driver to get on the ground. The driver started turning like he was getting on the ground and then dropped his hands and began to turn away from Veillon. Veillon then observed the driver pulling a shiny object resembling a gun from his mid-section. The driver then started running southbound.

Officer Varden Guillory with the Eunice Police Department heard the radio dispatch requesting officers to look out for a burgundy Buick driven by a black male who was possibly wearing a cap or rag on his head. Officer Guillory saw the vehicle when it cut across his path and turned into the Pitre Law Firm parking lot. Officer Guillory and Cliff Veillon yelled for the Defendant to get out of the car. Officer Guillory testified that the Defendant then got out of the vehicle, reached inside his pants, and pulled out a pistol. The Defendant then ran. Officer Guillory did not notice anyone else in the car. He stated the gun marked as State’s exhibit 13 looked like the weapon the Defendant had in his hand.

Richard Malbrue, an employee of Ardoin Marble Works, saw a man running from Leger’s store. Mr. Malbrue did not see the man pass the garage where the company trucks were parked. However, the man was running on Marble Works’ property. Mr. Malbrue testified the man was young, black, and wore something on his head.

Terry Darbonne, a Marshall for the City of Eunice, was asked to go to the east end of the city on November 30, 2001 to assist in locating .an individual. 11sDarbonne stopped his vehicle in the 200 block of St. Mary Street and got out. Once he and Lieutenant Bret Faulkner crossed over a ditch, they heard a noise, and the Defendant appeared from the doorway of a house. The Defendant was dressed in black, but he did not have on a “doo rag;” he also did not have a weapon. The Defendant was handcuffed by Officer Tony Kennedy of the Eunice Police Department and read his rights by Detective Ryan Young. This occurred at approximately 1:15 p.m. to 1:20 p.m.

After the Defendant was booked, Mir-andized, and placed in a holding cell, Officer Guillory went to see the Defendant at approximately 4:00 p.m. Officer Guillory asked the Defendant “why he wasn’t feeling any remorse because of what he did, by taking the life of a person who was trying to make a living.” The Defendant responded, “f — k you, I’ll do the same thing to you if I get a chance or I’ll call— make a phone call and have someone do it while I’m locked up.” The response surprised Officer Guillory. No one else heard the Defendant’s comments.

Patrick Hebert, the manager of Ardoin Marble Works, testified that on the Monday morning following November 30, 2001, he found a gun in one of the company trucks. Mr. Hebert looked inside the truck because the seat was “slouched over — up against the steering wheel.” Mr. Hebert did not touch the gun.

Detective Craig Ortego, the officer in charge of the investigation, removed the gun from the truck at Marble Works. Detective Ortego went into the driver’s side of the truck to remove the gun because he observed footprints on the passenger side of the vehicle. Detective Andrepont informed Detective Ortego that people had walked in the area where the shoe prints were found and Andrepont had checked the soles of everyone’s shoes who had been in the area to see if there were any similarities to the prints. Patrick Hebert testified he was “probably” wearing 11fltennis shoes the day he found the gun. The footprints were not those of Detective An-drepont or Patrick Hebert.

Detective Ortego also collected a stocking cap caught on a bush in Johnson’s Junkyard on December 1, 2001. The cap was found in an area that was approximately a two minute walk from where the gun was found. The Defendant was with Detective Ortego when he found the cap.

Lynn Guidry testified that she was married to Gerald Lee Guidry. Mr. Guidry was a retired State Trooper and owned a car lot in Opelousas, Louisiana where he sold used cars. Ms. Guidry testified that her husband worked alone and could not go to the bank to make change so he normally took two to three one-hundred dollar bills, a couple of twenties, a couple of tens, a couple of fives, and ones with him when he went to work. Ms. Guidry did not know if her husband took money with him when he went to work on November 30, 2001, but he normally took money with him. Ms. Guidry was surprised that when her husband’s wallet was found it had no money in it. Ms. Guidry reviewed her husband’s business records and found no transactions for November 30, 2001.

On the date of the offense, Deputy Marks seized $320.00 from the Defendant, including three one hundred dollar bills, one ten, one five, and five ones. Deputy Marks also seized the Defendant’s shoes.

Doug Lancon of the Acadiana Crime Lab testified that he photographed and lifted prints from the left side of the magazine of the Ruger 45 automatic pistol submitted by police. Lancon testified that the bullet fragment found in Mr. Guidry’s head was fired from the Ruger 45. Lancon testified that the magazine of the Ruger 45 held seven bullets and the chamber could hold one. He examined seven cartridge | ^casings seized by Detective Ortego at the crime scene and they were all fired from the Ruger 45.

Janice Reeves with the Louisiana State Police Crime Lab testified that she examined the fingerprint lifts and photographs of the prints found on the Ruger and compared them to the Defendant’s fingerprints. Ms. Reeves matched the left thumb print of the Defendant with a photo of the fingerprints found on the magazine of the gun. Ms. Reeves had no doubt that it was the Defendant’s fingerprint on the magazine.

Winnie Wong with the Acadiana Crime Lab testified that there was blood on the bottom right side of the handle of the Ruger just above where the magazine is placed in the gun. Blood was also found on the left side of the gun just above the trigger guard. The blood was that of the Defendant. There was a one in forty-three billion chance that the blood found on the gun was not the Defendant’s blood. There was no blood on the money seized from the Defendant.

Mark Kuroski with the Acadiana Crime Lab testified that the shoe prints found at Marble Works were made by the shoes seized from the Defendant.

Troopers Anderson and Guillory positively identified the Defendant as the person they saw at Mr. Guidry’s car lot. “[P]ositive identification by only one witness is sufficient to support a conviction. (Citations omitted).” State v. Neal, 00-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

The physical evidence, including the Defendant’s fingerprints on the Ruger 45, the bullet fragment in the victim’s head being fired from that gun, the Defendant’s blood on the gun, and the Defendant’s shoe prints in the area where the |?i1gun was found support the identification of the Defendant as the person at Gerald Guidry’s car lot.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact finder’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussail, 523 So.2d 1305, 1310 (La.1988).

State v. Tate, 2001-1658, p. 6 (La.5/20/03), 851 So.2d 921, 929.

The verdict in this case indicates the jury chose to believe the testimony of Troopers Guillory and Anderson and Brian Miller over that of the Defendant’s many alibi witnesses. This credibility determination should not be second guessed by this court. Furthermore, the physical evidence strongly supports this conclusion.

Specific Intent to Kill or Inflict Great Bodily Harm

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). “Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.” State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437 (citations omitted).

“[S]pecific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person.” State v. Seals, 95-0305, p. 6 (La.11/25/96), 684 So.2d 368, 373, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) (citations omitted). The fact that multiple shots are fired at a victim indicates a defendant’s culpable state of mind and satisfies the specific intent to kill requirement for murder. State v. Griffin, 618 So.2d 680, 700 (La.App. 2 Cir.), writ denied, 625 So.2d 1063 (La.1993).

122Seven shots were fired at the used car lot on November 30, 2001. One of those struck Mr. Guidry in the head, killing him. Mr. Guidry was also shot in the hand, his ear was grazed by a bullet, and a bullet caused injuries to the left side of Mr. Guidry’s face. Based on the injuries Mr. Guidry received and the number of shots fired, the jury could have inferred the Defendant had the specific intent to kill Mr. Guidry.

CONCLUSION

The record demonstrates that Defendant invoked his right to counsel. After invocation of his right to counsel, the Defendant did not initiate conversation with the police and knowledge of the invocation of his right to counsel is imputed to all officers involved in the case. Inasmuch as the police did not honor the Defendant’s invocation of his right to counsel, any statement made by the Defendant after the invocation of his right to counsel should have been suppressed. However, this error was harmless. Based on the positive identification of the Defendant, the physical evidence, and the number of shots fired, a rational trier of fact could have found the Defendant committed the offense of second degree murder; the verdict was surely unattributable to the erroneous admission of the statement made to Officer Guillory. We, therefore affirm the Defendant’s conviction and sentence.

AFFIRMED.