State v. Jarrell, No. 2007 KA 0412 (La. App. 9/19/2007)
| Decision Date | 19 September 2007 |
| Docket Number | No. 2007 KA 0412.,2007 KA 0412. |
| Parties | STATE OF LOUISIANA v. CHUCK LOUIS JARRELL. |
| Court | Court of Appeal of Louisiana — District of US |
WALTER REED, District Attorney, By: KATHRYN LANDRY, Counsel for Appellee, State of Louisiana.
MARION B. FARMER, Counsel for Defendant/Appellant, Chuck Louis Jarrell.
CHUCK L. JARRELL, Defendant/Appellant, In Proper Person.
Before GAIDRY, MCDONALD, and MCCLENDON, JJ.
The defendant, Chuck Louis Jarrell, was charged by bill of information with indecent behavior with a juvenile, a violation of La. R.S. 14:81. The defendant entered a plea of not guilty. The defendant later withdrew his plea and entered a plea of guilty as charged. On the date set for sentencing, the guilty plea was also withdrawn. The trial court denied the defendant's motion to recuse the judge. The defendant filed an application for supervisory writs with this court wherein he alleged that the trial court erred in denying his motion to recuse and that he was not represented by counsel at the original recusal hearing. Finding that the defendant's attorney should have been notified and given an opportunity to be present at the hearing, this court granted the writ, vacated the ruling of the trial court, and remanded the case for further proceedings. State ex rel. Jarrell v. State, 2003-1052 (La. App. 1st Cir. 8/11/03) (unpublished). The defendant was appointed counsel and a second recusal hearing was held. The trial court denied the defendant's motion again. The defendant again filed a writ to this court and the writ was denied. State ex rel. Jarrell v. State, 2004-1087 (La. App. 1st Cir. 7/12/04) (unpublished). The defendant's application for supervisory relief from the Louisiana Supreme Court was also denied. State ex rel. Jarrell v. State, 2004-1846 (La. 10/29/04), 885 So.2d 581. The trial court denied several other pretrial motions, including a motion to suppress confession and motions to suppress evidence.1
After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for post verdict judgment of acquittal, motion in arrest of judgment, and motion for new trial. The defendant was sentenced to seven years imprisonment at hard labor. The defendant was adjudicated a second-felony habitual offender. The defendant was later sentenced to ten years imprisonment at hard labor. The trial court ordered that the first two years of said sentence be served without probation, parole, or suspension of sentence. The defendant raises the following counseled assignments of error:
1. The trial court erred by not suppressing the evidence of the defendant's arrest because there was no search warrant or an arrest warrant to enter the residence where the defendant was found and the State failed to prove that the verbal consent to search was freely and voluntarily given by the owner of the residence.
2. The trial court erred by not granting the defendant's motion to suppress evidence of the defendant's prior conviction under La. Code Crim. P. art. 412.2.
3. The trial court erred by not granting the defendant's motion to suppress evidence of the video confession.
4. The trial court erred by not granting the defendant's motion for mistrial based on the State's failure to produce a written statement by the victim and the consent form for the DNA sample taken from the defendant.
5. The trial court erred by not conducting a presentence investigation prior to sentencing the defendant.
6. The defendant's conviction was in violation of his Sixth Amendment right to confrontation of all witnesses against him.
7. The trial court erred by imposing an excessive and harsh sentence upon the defendant.
The defendant raises the following pro se assignments of error in his supplemental brief:
8. The trial court erred by not allowing the defendant the right to compulsory process.
9. The trial court erred by not prosecuting the defendant in the time limit prescribed by law.
10. The trial court erred by not allowing the defendant to represent himself.
11. The trial court erred by placing the defendant in jeopardy twice for the same set of circumstances using the same evidence.
12. The trial court erred by not allowing or imposing excessive bail prior to trial.
13. The trial court erred by sentencing the defendant to the maximum sentence because the defendant showed no remorse.
14. The trial court erred by not allowing the defendant the right to choose a jury trial or judge trial.
15. The trial court erred by allowing sealed information to be used by the jury.
16. The trial court erred by allowing a tainted and/or broken chain of evidence to be used at the trial.
17. The trial court erred by allowing illegal identification of the defendant.
18. The trial court erred by allowing the prosecution of the defendant through a defective, invalid, defaced bill of information.
19. The trial court erred by allowing the defendant's public defender to continue throughout the proceedings to ineffectively assist the defendant.
For the following reasons, we affirm the conviction and habitualoffender adjudication, but vacate the enhanced sentence and remand for resentencing.
On or about July 22, 2001, H.A. (the victim)2 and a male friend (identified by the victim as Adam) went to a park in Bogalusa, Louisiana to play basketball. While there, the two had contact with the defendant. Ultimately, H.A., Adam, and the defendant simultaneously rode away from the park on the defendant's four-wheeler motor-bicycle. They rode to a grassy area known as "lover's lane." The defendant allowed Adam to drive the motor-bicycle in the area as he and the victim conversed. According to the victim, the defendant asked to see her "stuff," which she also described as her private part. At that point, the victim stated that she wanted to go home. During their ride back to the park, Adam drove the motor-bicycle, the victim sat in the middle, and the defendant sat directly behind the victim. According to the victim, the defendant unzipped his pants and she felt "that stuff on [her] back." Before they made it back to the park, Adam's mother drove by and instructed Adam and the victim to come with her. The victim reported the defendant's actions to Adam's mother. Adam's mother took the victim to the Washington Parish Sheriffs Office. The victim's clothing was collected and sent to the Louisiana State Police Crime Laboratory for testing. A specimen that was taken from a stained area on the back of the victim's shirt contained spermatozoa. The DNA profile from the spermatozoa matched the DNA profile of a blood sample drawn from the defendant.
ASSIGNMENT OF ERROR NUMBER ONE (COUNSELED)
In the first assignment of error, the defendant challenges the trial court's ruling on his motion to suppress evidence. The defendant notes that the State did not produce a consent form to prove that the officers had consent to enter the home in which the defendant was located at the time of his arrest and the homeowner was not called to testify. Thus, the defendant argues that there was no determination that the owner of the home voluntarily consented to the entrance. The defendant notes that only Detective Chris Hickman (of the Washington Parish Sheriffs Office) testified as to the consent by the homeowner. The defendant also notes that Sergeant Quinzell Spikes (of the Washington Parish Sheriffs Office and one of the arresting officers) could not recall whether they discovered the defendant's outstanding arrest warrants before or after the defendant was taken into custody. Further, Sergeant Spikes did not hear any discussion regarding consent. Finally, the defendant notes that there was no testimony that the owner was informed of his right to refuse to allow the search. The defendant argues that a failure to so infonn the owner may have affected the voluntariness of the consent. The defendant, presumably, concludes that any fruits of his arrest (including his confession) should have been suppressed.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Generally, a search warrant must also be obtained to enter the house of a third party to search for the subject of an arrest warrant. Steagald v. United States, 451 U.S. 204, 213-216, 101 S.Ct. 1642, 1648-1650, 68 L.Ed.2d 38 (1981); State v. Wolfe, 398 So.2d 1117, 1119-1120 (La. 1981). A search conducted without a warrant is presumably unreasonable unless justified by one of the specifically established exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Farber, 446 So.2d 1376, 1378 (La. App. 1st Cir.), writ denied, 449 So.2d 1356 (La. 1984). A valid consent search is a well-recognized exception to the warrant requirement, but the State has the burden of proving that the consent was valid in that it was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); State v. Smith, 433 So.2d 688, 693 (La. 1983); Wolfe, 398 So.2d at 1120. Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); State v. Bodley, 394 So.2d 584, 588 (La. 1981). An oral consent to search is sufficient; a written consent is not required. State v. Ossey, 446 So.2d 280, 287 n. 6 (La.), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); State v. Parfait, 96-1814, p. 13 (La....
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