State v. Sheppard
| Decision Date | 19 September 1977 |
| Docket Number | No. 59370,59370 |
| Parties | STATE of Louisiana v. Donald Ray SHEPPARD. |
| Court | Louisiana Supreme Court |
R. Judge Eames, Baton Rouge, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
Donald Ray Sheppard was indicted by the grand jury for the Parish of East Baton Rouge for first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty as charged and sentenced to death. On appeal, defendant relies on one hundred and ten assignments of error for reversal of his conviction and sentence.
The record reflects that the victim in this case, Valerie Morelock, a young LSU coed, returned to her residence at the High Point Apartments in Baton Rouge at about 2:00 a. m. on September 14, 1974, after dining with friends. Having apparently locked her keys in her own apartment, she knocked on the door of a second floor apartment tenant, Felix Vergara. When Vergara answered, he noticed that the young woman was dazed and did not communicate well. A few words were exchanged and as she began walking away she staggered and fell to her knees. At that moment, Vergara noticed a young black man come up the stairway from below and approach the vicinity where the victim had fallen. When he got as close as three feet to Miss Morelock, he turned left and disappeared from Vergara's sight. In the meantime, the young woman got up, walked back to Vergara's door and assured him that she was all right. She walked away again and Vergara returned to his apartment. A moment later, Vergara again looked out of his door and noted Valerie Morelock knocking at another door down the hall from his own. The same black male was again walking in her direction but turned left toward the laundry room after looking backward in Vergara's direction. Vergara returned to his apartment again, but remembering the girl's dazed state, he decided to dress and look for her. He did not find Valerie Morelock but he saw the same black man on the first floor of the apartment complex looking upward. Felix Vergara stated that he had gotten a good look at this individual since the apartment complex was well-lighted that evening.
At approximately 3:30 a. m., the victim rode her bike to the apartment of a friend about a block away. She visited for about fifteen minutes and then returned to the High Point Apartments where she knocked on the door of a friend who lived in Apartment 8, Peter Meisner. She advised Meisner that she was locked out of her own apartment and asked if she could come in. As the two stood in the doorway talking, two black men suddenly forced their way into the apartment behind Miss Morelock and one of them, armed with a .38 revolver, began hitting Meisner on the head with the weapon. After struggling with the assailants, Meisner was finally subdued and tied up face down on the living room floor. Miss Morelock was ordered to sit on the sofa but was soon taken into a back bedroom by one of the two intruders while the other man began to search the apartment looking for valuables. Thereafter, the two assailants switched places and the one guarding Meisner began to disconnect his stereo equipment. Moments later, a shot was heard from the back bedroom. Meisner heard the man who had been moving his stereo equipment go to the rear and ask whether the girl was dead. Then, the two returned to the front of the apartment and one of the men began moving the stereo out of an apartment window while the other assailant was heard going through drawers in the kitchen. Thereafter, the two approached Meisner and one rolled him over while the other stabbed him several times in the chest and back with a kitchen knife. They also took his watch which he had managed to hide under his stomach. The assailants then escaped through the living room window. After their departure, Meisner managed to free himself and staggered to the back bedroom where he found Valerie Morelock nude from the waist down with
a pillow over her head. There was a hole through the pillow and on removing it, Meisner saw that the young woman had been shot through the head. Meisner made his way to a nearby apartment where he called the police who arrived within thirty minutes of the crime and secured the scene. Meisner's stereo equipment and some other belongings were found outside the window where the perpetrators escaped; two of defendant's fingerprints were found on the stereo's plastic dustcover. An examination by the coroner of the victim revealed that she had had sexual relations.
In these assignments of error, defendant urges alleged errors that occurred during preliminary examination. He complains of questions seeking to elicit identification of the perpetrators of the offense, lack of qualification of a state fingerprint identification expert, and overruling defense objections to the questioning of certain state witnesses on grounds of relevancy and lack of proper foundation. Defendant also complains of the trial judge's determination that there was "probable cause to hold the defendant for grand jury determination."
It is well settled that the question of probable cause and errors alleged to have occurred at the preliminary hearing are moot now that defendant has been tried and convicted by a jury. State v. Sneed, 328 So.2d 126 (La.1976); State v. Luckett, on rehearing, 327 So.2d 365 (La.1976). Accordingly, these assignments of error present nothing for our review.
Assignments of Error Nos. 1, 1A, 2, 3, 4, 5, 6 and 7 are without merit.
Defendant contends the trial judge erred in denying his writ of habeas corpus filed after arrest and prior to the date set for defendant's preliminary hearing.
This court is without authority to review on an appeal from a conviction, the judgment of the district court denying a writ of habeas corpus. It is well settled that this court does not have appellate jurisdiction of habeas corpus proceedings in criminal cases. La.Code Crim.P. art. 369; State v. Howard, 281 So.2d 701 (La.1973); State v. Ames, 249 La. 685, 190 So.2d 223 (1966). Accordingly, this assignment of error presents nothing for our review.
Defendant contends the trial judge erred in arraigning him on November 15, 1974 and setting the case for trial on December 18, 1974 over objections by defense counsel that he had not received formal notice of the indictment or been given adequate opportunity to study the indictment and confer with defendant on a plea. Inasmuch as counsel instructed defendant to stand mute, a plea of not guilty was entered of record by the trial court in accordance with La.Code Crim.P. art. 554.
The record reflects that counsel representing defendant at arraignment had also represented defendant at the preliminary hearing on the offense two weeks earlier. He therefore was well acquainted with the nature of the charge filed against defendant. Moreover, the trial judge reserved defense counsel's right to file motions regarding the case until December 2, 1974.
This court has held that a request for postponement of arraignment and fixing a trial date based on insufficient time for preparation by defense counsel addresses itself to the sound discretion of the trial judge. State v. Green, 210 La. 157, 26 So.2d 487 (1946). We cannot say the trial judge abused his discretion in the instant case. In any event, defendant's subsequent motion to void the original arraignment and trial date was granted on December 17, 1974. Defendant was rearraigned on January 13, 1975 and entered a plea of not guilty. No request for a further continuance was made at this time. Since defendant's original arraignment was nullified and he was rearraigned at a later date at which time counsel had had ample time for preparation, defendant could not have suffered any prejudice
from the initial arraignment on November 15, 1974.
Assignment of Error No. 10 is without merit.
These assignments of error relate to motions by the defendant to quash the indictment filed against him.
In Assignments of Error Nos. 11 and 12, defendant contends the trial judge erred in refusing to quash the indictment on the ground that the statute under which he was charged was unconstitutional as applied. Defendant additionally urges that the trial judge erred in not granting a stay order while defendant sought supervisory writs to this court on the issue.
Defendant argues that La.R.S. 14:30 (1973) was applied against the poor, racial minorities and members of the male sex so as to result in the discriminatory imposition of the death penalty by virtue of a jury's unfettered discretion to return a lesser responsive verdict in the case of favored classes of persons.
As a result of the decision by the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) declaring Louisiana's mandatory death penalty for first degree murder unconstitutional and subsequent decisions of this court under the mandate of Roberts, defendant is entitled to be resentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years, which sentence represents the most severe valid penalty established by the legislature for criminal homicide at the time of this offense. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976). Accordingly, we consider that the Roberts decision and our decisions subsequent thereto render moot defendant's complaint concerning the discriminatory imposition of the death penalty under La.R.S. 14:30 (1973). In view of our disposition of the merits of this issue, we...
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