Stallings v. State, 71S00-8606-CR-595

Citation508 N.E.2d 550
Decision Date05 June 1987
Docket NumberNo. 71S00-8606-CR-595,71S00-8606-CR-595
PartiesLeonard C. STALLINGS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtSupreme Court of Indiana

Paul James Newman, South Bend, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

PIVARNIK, Justice.

Leonard C. Stallings was convicted by jury of Rape, a class A felony and was sentenced to 25 years imprisonment. He directly appeals raising three issues for our review: 1) admitting evidence obtained from a consent search of Stallings' residence, 2) refusing to permit testimony of the results of K.A.'s pregnancy test, and 3) sufficiency of the evidence.

The record shows on January 12, 1984, K.A. was walking to a bus stop on the way to school. Stallings drove up and asked if she wanted a ride. She refused, but eventually went with Stallings because he insisted and because he scared her. K.A. had seen Stallings a few times at a local Boys Club. Stallings drove K.A. to a house on Clinton Street in South Bend. He carried her inside to an upstairs bedroom, had her try on a pair of blue jeans, and then, while armed with a knife, forced her to have sexual intercourse with him.

Stallings then took K.A. to school. K.A. reported the rape to the assistant principal, who notified the police. K.A. pointed out the house to police. Police then took her to a hospital where a doctor and nurse prepared a rape kit. They saw no injuries and tests revealed no sperm on K.A.'s body. A pregnancy test was administered.

On January 13, 1984, police searched the house with the consent of Robert Gilliam. They found a pair of blue jeans in one upstairs bedroom and a knife in another bedroom. Photographs of these items and of the house were taken. Gilliam had lived at the Clinton Street house, but did not reside there on the date of the rape.

I.

Stallings first challenges the admission of the knife, the blue jeans and the photographs taken during the warrantless search of his home. Stallings made a pre-trial motion to suppress the fruits of the search, which the court denied. A hearing was held on the motion to suppress, but the Record of Proceedings presented on appeal does not contain a transcript of the hearing. It is an appellant's duty to present an adequate record clearly showing the alleged error. Jackson v. State (1986), Ind., 496 N.E.2d 32, 33. Where he fails to do so, the issue is deemed waived. Jackson, 496 N.E.2d at 33.

Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. Brames v. State (1980), 273 Ind. 565, 406 N.E.2d 252, 255. The State bears the burden of showing the warrantless search falls under an exception to the warrant requirement. Fisher v. State (1984), Ind., 468 N.E.2d 1365, 1368. A valid consent to search obviates the warrant requirement. Brames, 406 N.E.2d at 255. Consent to search which is given by a third party having common authority with the defendant over the premises is sufficient to justify a warrantless search of the defendant's residence. Brooks v. State (1986), Ind., 497 N.E.2d 210, 215; Fisher, 468 N.E.2d at 1368; Bruce v. State (1978), 268 Ind. 180, 236, 375 N.E.2d 1042, 1072, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662.

Common authority is not to be implied from the mere property interest a third party has in the property. Bruce, 268 Ind. at 236, 375 N.E.2d at 1072. The authority which justifies the third party consent rests on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. When reviewing a trial court determination of the validity of a search, we consider the evidence favorable to the trial court's ruling and any uncontradicted contrary evidence. The test is sufficiency of the evidence. Brooks v. State, 497 N.E.2d at 215.

Stallings alleges Gilliam's consent to search was invalid and thus, the search was illegal. Stallings asserts that as co-owner and sole resident of the house, he had a reasonable expectation of privacy which could not be overcome by Gilliam's consent to search. The search was conducted pursuant to Gilliam's written consent, as co-owner of the house. Gilliam had lived in the house with his common law wife, Stallings' mother, until after her death. Gilliam then moved out, but permitted Stallings to continue to live there. Gilliam continued to let himself into the house to retrieve mail and to check on the condition of the house.

The police relied on Gilliam's claim of ownership to validate the consent to search. Further, the facts show Gilliam actually used the house. He maintained a right of entry to collect mail and to maintain the premises. Since Gilliam maintained such a right, it would be foreseeable for him to inspect the premises or to permit other persons to inspect the premises. Bruce, 268 Ind. at 236, 375 N.E.2d at 1072. We are presented with no evidence to the contrary. Because Gilliam retained such control over the premises, Stallings must have assumed the risk that Gilliam might permit others to inspect the premises. Id. Therefore, Gilliam had common authority with Stallings over the Clinton Street residence, and the written consent to search was valid.

II.

Stallings next challenges the exclusion of evidence pursuant to the rape shield statute. He maintains the exclusion denied his right to cross-examine a doctor concerning the results of a pregnancy test administered to K.A. during the post-rape examination. He alleges the results would have impeached K.A.'s credibility.

Any evidence of the victim's past sexual conduct, including the fact of the victim's pregnancy, is inadmissible under the rape shield act. Moore v. State (1979), 271 Ind. 464, 467, 393 N.E.2d 175, 177; Ind.Code Ann. Sec. 35-37-4-4 (Burns 1985). Therefore, Stallings' efforts to bring K.A.'s pregnancy to the jury's attention were improper. Reference to a victim's past sexual conduct for impeachment purposes is properly excluded under the rape shield statute unless the exclusion denies the defendant's fundamental right to adequate and effective cross-examination. Woodford v. State (1986), Ind., 488 N.E.2d 1121, 1126. The statute has consistently been upheld over claims of denial of the right of confrontation unless a showing of actual impingement on cross-examination has been demonstrated. Woodford, 488 N.E.2d at 1126.

Stallings attempted to introduce evidence of K.A.'s pregnancy in order to impeach her credibility. Stallings asserts the question was not an attempt to inquire into K.A.'s general sexual history, but rather, an attempt to attack her...

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36 cases
  • Krise v. State
    • United States
    • Indiana Supreme Court
    • May 9, 2001
    ...and knowing consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Stallings v. State, 508 N.E.2d 550, 552 (Ind.1987). The twists and turns of Fourth Amendment law are often difficult to negotiate, with variations in fact patterns often de......
  • Sweeney v. State
    • United States
    • Indiana Supreme Court
    • December 18, 1998
    ...search. Brown v. State, 691 N.E.2d 438, 443 (Ind.1998) (citing Perry v. State, 638 N.E.2d 1236, 1240 (Ind.1994); Stallings v. State, 508 N.E.2d 550, 552 (Ind.1987)). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requiremen......
  • Williams v. State
    • United States
    • Indiana Supreme Court
    • December 11, 1997
    ...information in support of his claim. It is the defendant's duty to provide a record which reflects the error alleged. Stallings v. State, 508 N.E.2d 550, 552 (Ind.1987). To the extent the record is inadequate, it results in waiver of the issue. Id. However, the record does reflect two heari......
  • State v. Thomas
    • United States
    • Indiana Appellate Court
    • October 26, 1994
    ...such a search. We disagree. The State is correct that a valid consent to search obviates the necessity of a warrant. Stallings v. State (1987), Ind., 508 N.E.2d 550, 552. Generally, a third party with "common authority" over, or other sufficient relationship to, the place or effects being s......
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