97-1278 La.App. 4 Cir. 5/27/98, State v. Atkins

• Decision Date: 27 May 1998
• Parties: 97-1278 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1168

713 So.2d 1168

97-1278 La.App. 4 Cir. 5/27/98

STATE of Louisiana v. Samuel D. ATKINS.

No. 97-KA-1278.

Court of Appeal of Louisiana,

Fourth Circuit.

May 27, 1998.

Yvonne Chalker, Louisiana Appellate Project, New Orleans, for Defendant/Appellant Samuel D. Atkins.

Harry F. Connick, District Attorney, Karen Godail Arena, Assistant District Attorney of Orleans Parish, New Orleans, for Appellee The State of Louisiana.

Before SCHOTT, C.J., and LOBRANO and MURRAY, JJ.

[97-1278 La.App. 4 Cir. 1] MURRAY, Judge.

Defendant, Samuel Atkins, was charged by grand jury indictment with a charge of aggravated rape, a violation of La.Rev.Stat. 14:42. Following trial by a twelve-person jury, he was found guilty of the lesser charge of forcible rape, and was thereafter sentenced to serve twenty years at hard labor, without benefit of probation, parole or suspension of sentence. He appeals that conviction.

STATEMENT OF THE FACTS :

On the afternoon of Sunday, August 4, 1997, the victim, F.H., ¹ a sixteen-year-old female, was at home in her mother's residence. ² Her mother, Martha; her seventeen-year-old brother, Earl; and Mr. Atkins, Martha's husband, were also at home. All testimony confirmed that Martha, Mr. Atkins, and Earl were drinking and watching television in the living room. According to Martha's [97-1278 La.App. 4 Cir. 2] testimony, at approximately 4 p.m., she heard some noise upstairs, but assumed it was Earl and the victim wrestling. She then saw Earl and Mr. Atkins coming down the stairs, struggling. Mr. Atkins ran outside the door with Earl following him. When Earl returned inside he told Martha that "Sam was messing with [F.H.]. I'm fixing to call the police." The police came a few minutes later.

F.H. testified that she had been outside playing most of the afternoon. When she came in she saw her mother sleeping on the sofa, so she went upstairs. Mr. Atkins followed her into her bedroom. She testified that once inside her bedroom, he told her: "You better give it to me." She replied "No." He slapped her and told her he would kill her if she did not "give it up to him." He took her shorts and his pants off, then threw her on the bed and put his hands around her neck, scratching her. He then told her that if she did not let him put "it" in her he would put "it" in her mouth. He told her to get on her knees and then raped her vaginally. F.H. indicated that Mr. Atkins did not ejaculate. Earl came into the room, and she heard Mr. Atkins say, "Ha, ha, I raped your sister." She pulled up her shorts, and went downstairs.

Earl testified that he had also fallen asleep downstairs, but decided to go up to his room. As he entered, he saw Mr. Atkins on top of his sister engaging in intercourse. He said both his sister and Mr. Atkins had shirts on, but their pants were down to their ankles. Earl pulled Mr. Atkins off of his sister. Mr. Atkins pulled up his pants, and as he ran downstairs said, "Guess what, I f---ed your sister. Ha, ha, ha." Earl said F.H. looked scared and upset and had scratches on her neck and face. Earl ran downstairs, told his mother what happened, and called the police. He said Mr. Atkins twice tried to pull the phone from him, so he struck him. After the second blow, Mr. Atkins ran from the house. The police came and Earl related what had happened. Earl testified that his sister told him that Mr. Atkins had threatened to kill her if she told anyone about the attack.

[97-1278 La.App. 4 Cir. 3] New Orleans Police Officer Gary DeGruy testified that upon his arrival at the scene the victim was upset and crying, and was unable to tell him what had happened, so the brother related the story to him. He observed scratches on the front and sides of F.H.'s neck and, at trial, identified crime lab photographs depicting those injuries.

Dr. Jennifer Miles performed a full physical examination on the victim the day of the crime. Dr. Miles observed some welts on the victim's neck consistent with choking. A pelvic exam revealed increased secretions around the outside of the victim's vagina and a small tear at the lower part of the entrance to the vagina. Dr. Miles testified a tear that size, two millimeters, would not persist more than a day or two and opined that the tear was no more than a couple of days old. She said the tear would be consistent with forcible sexual intercourse. No motile sperm were found, and Dr. Miles testified the victim related that the person who raped her did not ejaculate.

Howard Grant, the victim's grandfather, testified that he began looking for Mr. Atkins with the intention of holding him until the police could arrive to arrest him. He and two companions found Mr. Atkins the next morning at a bar. Mr. Atkins left the building through a rear door and Mr. Grant followed him in his truck. He caught up with Mr. Atkins, after telephoning police on his cellular phone, "scuffled" with him, and detained him until police arrived. Mr. Grant testified that Mr. Atkins repeatedly said he was sorry for what he had done and that he needed help.

Officer Ricky Bruce testified that on August 5, 1996, he answered a call of a fight, and found Mr. Atkins on the ground "pretty well beaten up." Mr. Grant told Officer Bruce that Mr. Atkins was wanted for rape, so he placed Mr. Atkins in the rear of his police car, and read him his rights. Officer Bruce said Mr. Atkins made the statement that "he was sick and [police] needed to lock him up."

[97-1278 La.App. 4 Cir. 4] Det. Edward Cooper, assigned to the New Orleans Police Department's Child Abuse section, obtained statements from the victim and her brother, Earl, on the day of the rape. He observed welts and scratches around the victim's neck and, at trial, identified photographs depicting those injuries. Detective Cooper stated that the victim appeared to have a "somewhat diminished mental capacity." The next day, Det. Cooper was returning to the victim's neighborhood in an attempt to locate Mr. Atkins, when he saw Officer Bruce driving in the opposite direction. When Det. Cooper realized that the man in Officer Bruce's car was Mr. Atkins, he informed Mr. Atkins that he was under arrest for the rape, and advised him of his rights. Mr. Atkins then confessed to the crime. Det. Cooper had Mr. Atkins transported to Charity Hospital for treatment of the injuries he sustained in the scuffle with Mr. Grant.

It was stipulated that no physical evidence obtained from the victim --- vaginal swabs, vaginal smears, and pubic hair combings --- were connected to Mr. Atkins.

Mr. Atkins testified that he and the victim were only wrestling when Earl came into the room. He said he and F.H. had all of their clothes on. He denied the crime itself and to threatening F.H. in any way. He admitted that he had been drinking heavily all day. He said he might have grabbed F.H. around the neck, and that he possibly choked her, but could not remember because he was drunk. Mr. Atkins admitted to two prior convictions: one for simple robbery, and one for carnal knowledge of a juvenile. He admitted to making statements to the police officers, but that he only did so because he was sitting in the police car and wanted "to get them to take me from around the area." When asked if he made a statement to Det. Cooper about raping the victim, he replied: "I didn't say nothing about no rape."

[97-1278 LA.APP. 4 CIR. 5] DISCUSSION

Errors Patent Review:

A review of the record for errors patent reveals none.

Assignment of Error No. 1:

In his first assignment of error, Mr. Atkins argues that the trial court erred in denying his pretrial motions to suppress the inculpatory statements allegedly made by him to Howard Grant and Officer Ricky Bruce at the time of his arrest, as well as the confession to Det. Edward Cooper while in the rear of Officer Bruce's police car.

La.Rev.Stat. 15:451 provides:

Before what [purports] ³ to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.

State v. Sepulvado, 93-2692, p. 4 (La.4/8/96), 672 So.2d 158, 163, cert. denied, Sepulvado v. Louisiana, --- U.S. ----, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Hohn, 95-2612, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 454, 456. The State has the burden of proving the admissibility of a purported statement or confession at a motion to suppress hearing. La.Code Crim. Proc. art. 703(D). State v. Sepulvado, supra; State v. Hohn, supra. These rules apply whether the statement is made to an agent of the State or a private citizen. See State v. Martin, 94-252, p. 3 (La.App. 5 Cir. 10/12/94), 645 So.2d 752, 754, writ denied, 94-2787 (La.3/10/95), 650 So.2d 1174. "The testimony of police officers alone can be sufficient to prove the defendant's statements were freely and voluntarily given." State v. Gibson, 93-0305, p. 6 (La.App. 4 Cir. 10/13/94), 644 So.2d 1093, 1097. To establish the admissibility of a statement made by an accused person pursuant [97-1278 La.App. 4 Cir. 6] to custodial interrogation, the State must prove that the accused was advised of his Miranda rights, and that he waived those rights prior to interrogation. State v. Bell, 613 So.2d 744, 746 (La.App. 4 Cir.1993).

In determining the voluntariness of a statement, the trial court must review the totality of the circumstances. State v. Sepulvado, supra; State v. Dunn, 94-776, p. 15 (La.App. 5 Cir. 2/15/95), 651 So.2d 1378, 1387. A trial court's determination as to the admissibility of a statement is within the discretion of the trial court and its decision will not be disturbed unless unsupported by the evidence. State v. Tart, 93-0772, p. 23 (La.2/9/96), 672 So.2d 116, 126, cert. denied, Tart v. Louisiana, --- U.S. ----, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Samuels, 94-1408, p. 7 (La.App. 4 Cir. 6/7/95), 657 So.2d 562, 566. A trial court's conclusions as to the...