State v. Scott

593 So. 2d 704, 1991 WL 276980
Louisiana Court of Appeal·Decided December 30, 1991·No. 90-KA-0904·Published·Cited by 26 cases

Opinion

593 So.2d 704 (1991)

STATE of Louisiana
v.
Kevin A. SCOTT.

No. 90-KA-0904.

Court of Appeal of Louisiana, Fourth Circuit.

December 30, 1991.

*706 Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., New Orleans, for plaintiff.

Sherry Watters, Orleans Indigent Defender Program, New Orleans, for defendant.

Before BYRNES, LOBRANO and ARMSTRONG, JJ.

ARMSTRONG, Judge.

The defendant, Kevin Scott, was indicted by a grand jury with two counts of aggravated rape, a violation of R.S. 14:42, two counts of aggravated burglary, a violation of R.S. 14:60, and three counts of simple burglary of an inhabited dwelling, a violation of R.S. 14:62. He pleaded not guilty to all counts. His motions to suppress the identification, confession and evidence were denied. After a trial a twelve-member jury found the defendant guilty as charged on all counts except for one count of residential burglary on which he was acquitted. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on the two aggravated rape counts; to thirty years at hard labor on the two aggravated burglary counts; and to twelve years at hard labor on the two simple burglary counts. All of the sentences are to run consecutively to each other.

The record reflects that shortly after midnight on September 1, 1989, Roland Galatas was returning to his apartment building at 7819 St. Charles Avenue when he saw defendant coming out of the building. Galatas asked him who he was, defendant said that he lived in the building. Galatas pulled out his gun and told defendant that he knew defendant did not live there. Defendant then said that he was visiting Susan Bussel and named an apartment. Galatas said that he knew Ms. Bussel did not live in the named apartment. Galatas also remembered that several days earlier another tenant, P.M. (because this is a rape case, the victim's name will not be used), had been raped and that defendant fit the description of the rapist. Galatas ordered defendant to go into his apartment and to sit on storage crates in the living room. Galatas then called the police.

Detectives Glenn Huth and Ned Gonzales responded and arrived at Galatas' apartment. They advised the defendant of his rights and that he was a suspect in the rape. Defendant told them that he was visiting his friend Susan and gave the officer a set of keys. One of the keys fit the door lock to Ms. Bussel's apartment, but another key did not fit the deadbolt lock. Defendant also gave them three photographs. Ms. Bussel was in two of the pictures. Defendant was allowed to leave, and he had no objections to the detectives keeping the keys and the photographs. A few days later, Galatas was cleaning his apartment; and when he moved the storage crates in his living room, he found two pairs of women's panties. Galatas stated that he had kept defendant under constant watch while defendant sat on the crates, and that he did not see defendant place any panties behind them.

Officer Joseph Lorenzo was investigating the rape of P.M. which had occurred at 7819 St. Charles on August 23. He met with Gonzales who gave him the keys and the photographs. Lorenzo showed the three photographs to the landlady, and she identified Ms. Bussel in two of the photographs. She identified the third photograph as that of Yumiko Tanaka, a tenant of the adjacent apartment building at 7825 *707 St. Charles. The key that did not fit the deadbolt to Ms. Bussel's apartment fit the lock to the laundry room for the building.

Lorenzo interviewed Ms. Tanaka, and she identified the photograph as being of her. She looked in a photo album which she kept on a bookshelf and found that picture missing. She also identified one of the pairs of panties found in Galatas' apartment as hers because of the Japanese writing on the label. She did not know anything was missing until she spoke with the police. She denied knowing defendant, letting him into her apartment, or giving him the photograph.

Ms. Bussel testified that she had spoken briefly with defendant on prior occasions on the street. She said that she had seen him in the apartment building once and that he told her he lived there. She stated that she had never let him into her apartment or given him the two photographs of her or any of her undergarments. She identified the other pair of panties found in Galatas' apartment as hers because the panties were part of a set. She said that she did not know anything was missing from her apartment until she spoke with the police.

P.M. testified that at approximately 4:30 a.m. on August 23, she was awakened by a man holding something to her throat and who then raped her. She picked out defendant and another man from a photographic lineup, but at trial she was unable to identify defendant as the one who raped her.

Detective Cindy Patterson was investigating the rape of D.W. on June 3, 1989, at D.W.'s apartment at 7212 Maple Street. She put defendant's picture in a photographic lineup, and D.W. picked him out. D.W. had been shown four previous photographic lineups, but had not identified any one as her assailant.

D.W. testified that she was awakened by a man holding a knife to her neck. She pushed the knife away and sustained a cut on her hand and neck. The man raped her several times, and she noticed that he wore rubber gloves.

Lorenzo arrested defendant for the burglaries of Ms. Bussel's and Ms. Tanaka's apartments. Lorenzo stated that he told defendant that was the reason for his arrest and advised him of his rights. Defendant asked why the rape investigation unit was handling the burglary investigation and he was told by Officer Cindy Burkhart that it was because the burglaries occurred in the same apartment complex where there had been a sexual assault. He then asked if the officers were insinuating that Ms. Bussel had been attacked. Burkhart told him that she had not and asked him about the keys and the photographs and about his relationship with Ms. Bussel. Defendant said that they were a gift and that Ms. Bussel was just a friend. The officers then told defendant that Ms. Bussel denied giving him those things, and defendant said that Ms. Bussel was telling the truth. He confessed to taking the pictures out of her apartment while she was absent. He further admitted entering Ms. Tanaka's apartment and taking a picture. Additionally, he admitted entering a third apartment and stealing a pair of panties. Defendant was then asked whether he had ever entered the apartment at the back of the building where the assault had occurred. Defendant stated that he had and that P.M. was not supposed to be there. He confessed to raping her. None of the statements had been recorded up to that point, but Burkhart asked defendant if he objected to having his statement taped. He had no objections, and he repeated his confession.

Both defendant's apartment and locker at work were searched. The police seized numerous pairs of rubber gloves, several sets of keys, a pair of panties, several photographs, a sorority magazine, and other items.

A review of the record reveals an error patent as to the sentences imposed for the two counts of simple burglary of an inhabited dwelling. Under R.S. 14:62.2, the first year of the sentence is to be served without benefit of probation, parole, or suspension of sentence. The trial court failed to impose this condition on the first year of the sentences for the two counts; thus, the sentences are illegally lenient. A sentencing *708 error favorable to the defendant cannot be considered on app

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State v. Scott, 593 So. 2d 704, 1991 WL 276980 (La. Ct. App. 1991).

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