State v. Watkins

621 So. 2d 157, 1993 La. App. LEXIS 2520, 1993 WL 232428
CourtLouisiana Court of Appeal
DecidedJune 30, 1993
DocketNo. 90-KA-1603
StatusPublished
Cited by3 cases

This text of 621 So. 2d 157 (State v. Watkins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Watkins, 621 So. 2d 157, 1993 La. App. LEXIS 2520, 1993 WL 232428 (La. Ct. App. 1993).

Opinion

BARRY, Judge.

The defendant was indicted for aggravated rape, aggravated crime against nature, aggravated burglary, and attempted second degree murder. The attempted murder charge was nolle prosequied. He was convicted of forcible rape and sentenced to forty years, convicted of aggravated crime against nature and sentenced to fifteen years, and convicted of attempted aggravated burglary and sentenced to fifteen years at hard labor. The sentences for forcible rape and crime against nature are to be served at hard labor without benefit of parole, probation or suspension of sentence. All sentences are consecutive.

The following assignments are considered:

(1) failure to suppress the evidence;
(2) the sentence is excessive; and
(3) the indictment is fatally defective.

The seventeen year old victim testified that she was home alone asleep when a man jumped on top of her. He punched her in the face and started strangling her. They fell to the floor and he threatened to kill her if she screamed. He ordered her to disrobe, forced her to perform fellatio and submit to vaginal and anal intercourse. He stole money and jewelry. The defendant claimed the sex was consensual and the jewelry was given to him to pawn.

The victim’s mother and two brothers were not home. Her mother had seen a group of young men, including the defendant, drinking outside the house of a neighbor, Mrs. Harris. Det. Burkhardt, who investigated, had the defendant’s first name before she contacted Mrs. Harris who provided the last name. Fingerprints in the victim’s house matched the defendant’s fingerprints.

A search warrant was obtained for the house where the police believed the defendant was living. The warrant was executed and Det. Burkhardt was told the defendant frequently stayed in the other half of the double. Det. Burkhardt obtained permission from the residents, Mr. and Mrs. Thomas, to search the room where the defendant slept. Several pieces of stolen jewelry and a tape were found hidden in a closet.

MOTION TO SUPPRESS

The police officers did not have a warrant to search the Thomas residence. The State must prove that consent was freely and voluntarily given by someone with authority in order to rely on the consent exception to the warrant requirement. State v. Valenzuela, 590 So.2d 89 (La.App. 4th Cir.1991), writ denied, 593 So.2d 380 (La.1992), cert. denied, — U.S.-, 113 S.Ct. 130, 121 L.Ed.2d 84 (1992).

At the motion hearing Det. Burkhardt testified that Mr. and Mrs. Thomas gave written consent to search their residence. Mr. and Mrs. Thomas testified they consented to the search. The defendant argues that Mr. and Mrs. Thomas did not have the authority to consent because he [159]*159had sole authority for the room where he slept.

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected.

State v. Wagster, 361 So.2d 849, 855 (La.1978), quoting United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974).

The authority which justifies a third party consent does not rest upon the law of property. It concerns the mutual use of property by persons who have joint access or control so that it is reasonable to recognize that any of the co-inhabitants has the right to permit inspection of the common area. A parent normally has authority to consent to the search of a child’s room. State v. Hudson, 404 So.2d 460 (La.1981); State v. Packard, 389 So.2d 56 (La.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 359 (1981). See also State v. Hodges, 526 So.2d 406 (La.App. 4th Cir.1988), writ denied, 532 So.2d 175 (La.1988).

Mrs. Thomas testified that she considered herself the defendant’s foster parent because he lived with her for about two or three years. Mrs. Thomas stated that her children also used the bedroom and kept possessions there during visits. Mr. Thomas testified he considered the defendant his foster son and no rent was charged.

We are satisfied that the Thomas’ consent to search was proper. The defendant did not have sole use of the room and did not pay rent. There was common usage of the room by the Thomas family.

The motion to suppress was properly denied.

EXCESSIVE SENTENCE

The defendant argues that the maximum consecutive sentences are excessive.

La. Const. Art. I, Section 20 prohibits excessive punishment. Imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Watson, 575 So.2d 411 (La.App. 4th Cir.1991). Punishment is unconstitutionally excessive if it makes no measurable contribution to acceptable rules of punishment and is nothing but the purposeless and needless imposition of pain and suffering or if the sentence is grossly out of proportion to the severity of the crime as to shock our sense of justice. State v. Sims, 410 So.2d 1082 (La.1982).

When sentencing occurs prior to January 31, 1992 the record must reflect that the trial court adequately considered aggravating and mitigating factors in La. C.Cr.P. art. 894.1 (pre-1992 revision). The trial court’s reasons for imposing the sentence are an important aid to decide whether the sentence is excessive. State v. Guiden, 399 So.2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982); State v. Bell, 543 So.2d 965 (La.App. 4th Cir.1989).

At the sentencing hearing the trial court heard the testimony of Mrs. Harris, Mr. and Mrs. Thomas, the defendant’s mother, and the defendant’s grandmother. They testified that the defendant had not been involved in violent crimes and asked for leniency. Defense counsel argued that the defendant, who was in his early 20’s, would not be rehabilitated in a maximum security institution. Counsel noted that the defendant’s other convictions were for theft under $500.00 and receiving stolen goods. Counsel urged eligibility for parole at thirteen or fifteen years.

The trial court noted that the defendant was 22 years old, single and unemployed. His criminal history dates back to 1979 and includes arrests for simple battery, receiving stolen things, trespass and theft. The court stated:

This defendant stands convicted by jury of the crimes of forcible rape, aggravated crime against nature and attempted [160]*160aggravated burglary. The facts adduced at trial show that the victim, an 18 year old, was home alone and in bed asleep when she was awakened by the defendant who strangled her and threatened to kill her if she did not submit to him. He then violated her vaginally, anally, and orally and forced her to perform oral copulation on him.
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This is a hideous crime.

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Bluebook (online)
621 So. 2d 157, 1993 La. App. LEXIS 2520, 1993 WL 232428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-watkins-lactapp-1993.