State v. BaggettState v. Baggett
The defendants Baggett and Estevez were convicted of simple burglary,
The most substantial contentions are made (a) concerning the trial court‘s denial of a motion to suppress identification testimony (Bills No. 4—Baggett аnd No. 11-Estevez) and (b) concerning the denial of a motion for a new trial, based upon the contention that a burglary could not be сommitted by the unauthorized entry into an open carport (Bill No. 5-Baggett, No. 15-Estevez).
Motion to Suppress Identification
The crime was committed shortly after 1:00 AM. Mrs. Beatman wаs awakened by her barking dog. From her window, she saw two young men carrying a motor across the lawn next door. She watched a few seconds, then (realizing it was her son-in-law‘s motor) yelled at them. They stopped, looked sideways, then commenced running. At the point Mrs. Beatmаn saw them, they were 25-30 feet from her window.
Mrs. Beatman called the police. While she had seen their faces mostly sidewise, she described them as two young white men, with a description of their hair-color, height, and clothes. She testified that they were young men in their twenties, еach with shoulder-length hair, one blond and about 5‘7” in a light colored shirt, the other brunet and about 5‘5” in a darker jacket.
The police station was less than a block away. The police soon afterwards picked up two young men of this general description in the vicinity and were bringing them to the station within minutes. As Mrs. Beatman arrived at the station, she saw the young men getting out of the police vehicle and sрontaneously then identified them as the men she had seen taking the motor away, before she was asked by the police if they werе the men she had seen. This was within a matter of minutes after the incident.
The defendants contend that Mrs. Beatman‘s identification of them was based upon her viewing them at the police station rather than upon her independent identification
Although the contention poses a serious issue, nevertheless we do not sustain it. Whatever inadequacy a one-on-one identification might have, under the present facts the totality of thе surrounding circumstances proves by clear and convincing evidence that Mrs. Beatman‘s incourt identification of the defendants was based independently upon observations made at the scene of the crime rather than upon the station-house confrontation. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Pierre, 261 La. 42, 259 So.2d 6 (1972); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).
Motion for New Trial on Ground No Evidence of Burglary
The outboard motor had been removed by use of bolt cutters from the rear of a boat backed into the Beatman carport.
The carport was included as an indentation under the roof of the Beatman rеsidence, with its side and rear being walls of the house. The front of the carport was fenced by a fence running from the front corner оf the house across the carport entrance to the side-fence, although one side of the carport openеd on the fenced sideyard of the residence.
The carport was entered by a double gate in the fence at the carрort front. The gates to the carport were closed when Mrs. Beatman checked before retiring for the night. When Mrs. Beatman loоked out her window and saw the two men walking across her neighbor‘s lawn, she also noticed that one of the gates to the carpоrt had been opened.
Simple burglary is defined as “the unauthorized entering of any vehicle, water craft or other structure, movablе or immovable, with the intent to commit” a felony or theft.
We do not find merit in the defendants’ argument that the carport is not a “structure” and that walking into a carport оpen to the street is not an “unauthorized” entry. The carport, included within the frame and roof of the home and fenced to prevent entry, is a “structure“, whether regarded as part of the home or instead as an independent structure with a roof and two walls and entirely fenced against entry by the public. For similar reasons, the entry was “unauthorized” since it was not open to the public with consequеnt implied consent. Cf. State v. Dunn, 263 La. 58, 267 So.2d 193 (1972), noted at 34 La.L.Rev. 342-43 (1974). The defendants cite no authority interpreting the present burglary statutes to the contrary.
Other Bills
The other bills pose no substantial issue:
Both dеfendants (Bill Nos. 1-3) attacked the petit jury venire as excluding a large and distinguishable portion of the population, allegedly being 18-25 year olds not registered to vote. The evidence shows the jury venire to be drawn at random
The defendant Estevez‘s Bills Nos. 4-8 were taken to the trial court‘s denials of his challenges for cause to certain рrospective jurors, whereupon they were peremptorily challenged by the defendants. We have examined the voir dire examination and find no error in the trial court‘s rejection of the challenges for cause.
The defendant Estevez‘s Bills Nos. 9, 12, 13, and 14 were tаken to allegedly prejudicial prosecutorial remarks. The trial court clearly did not err in denying a mistrial as to any of them. As to Bill Nо. 14, the argument that the jury should conclude that the witnesses at the trial “whose testimony is unrebutted were telling the truth” is attacked as an indirect reference to the failure of the defendants to testify, such as is prohibited by
Bill No. 10 of the defendant Estevez was taken to a minor and collateral question asked by the state on redirect examination, as being beyond the scope of the cross-examination. The bill possesses no merit.
Decree
For the foregoing reasons, we affirm the convictions and sentences.
Affirmed.