Lukach v. State

• Decision Date: 22 June 1992
• Docket Number: No. CR,CR
• Citation: 834 S.W.2d 642,310 Ark. 38
• Parties: John Richard LUKACH, Jr., Appellant, v. STATE of Arkansas, Appellee. 91-293.
• Court: Arkansas Supreme Court

Page 642

834 S.W.2d 642

310 Ark. 38

John Richard LUKACH, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-293.

Supreme Court of Arkansas.

June 22, 1992.

Larry W. Horton, Malvern, for appellant.

Didi Sallings, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

The appellant, John Richard Lukach, Jr., was convicted of raping a five-year-old girl and committing burglary and was sentenced to life imprisonment for rape and twenty years for burglary, to run consecutively. He appeals on several grounds, including the lack of sufficiency of the evidence and the failure of the circuit court to grant him a continuance to test certain blood, hair, and saliva samples and to investigate the whereabouts of a red truck with California license plates which his counsel asserts was seen on the morning of the crimes in the area. We affirm the convictions and sentences.

On the morning of June 8, 1991, at about 5:20 a.m., Rhonda Ivy, a resident of Jones Mill, was getting ready for work when she heard a noise in her child's bedroom. She entered the bedroom and saw a man climbing through the window. She screamed, and the man ran away. The man, she said, was wearing blue jeans and what sounded on the pavement like cowboy boots and was carrying either a shirt or a rag in his hand. At the ensuing trial, she positively identified Lukach as the man.

That same morning at about 6:45 a.m., the five-year-old daughter of Francis and JoAnn Kane came into their bedroom and said that a man had hurt her. Blood was running down her legs. When the parents surveyed the child's bedroom, they discovered that the bed sheet was missing and that the mattress had a large spot on it which was subsequently identified as blood. A physician, Dr. Bruce White, later examined the victim. He found bruises on her face and multiple tears and lacerations to her vaginal area.

Mark Stroup, who lived behind Rhonda Ivy, heard her screams that morning. Before hearing Ivy's screams, he saw Lukach park a gray pickup truck on the road some distance from his house. Lukach was not wearing a shirt but was wearing blue jeans and cowboy boots. Later, Stroup saw Lukach carrying a sheet with some "red stuff" on it. When the police appeared, Lukach ran behind a house and escaped. Another witness, Timothy Jensen, was with Stroup and also saw Lukach. He confirmed that Lukach was wearing blue jeans and cowboy boots.

Lukach was next seen by Mark Stroup and others walking back to his gray pickup truck. He was now wearing cutoff blue jeans and no shirt. He told Hot Spring County Deputy Sheriff John Nooner that he was having trouble starting his truck, but when the deputy attempted to start it, the engine ignited immediately.

On June 10, 1991, Lukach was charged with the rape and burglary of the Kane home, and his jury trial was set for August 26, 1991. On June 17, 1991, a hearing was held on the State's motion to take blood, hair, and saliva samples from Lukach, and the court granted the motion. On July 10, 1991, Lukach filed a Bill of Particulars and included in this discovery request a prayer for all information and documentation concerning scientific testing. No request for independent testing was made in the Bill of Particulars. Six days before trial on August 20, 1991, the State provided most of the discovery information, including the scientific testing, to Lukach.

On August 23, 1991, counsel for Lukach moved for a continuance on grounds that he desired to perform independent testing of the samples evaluated by the State and needed additional time to do that and to investigate further a red truck with California plates which was said to be in the area of the crime. Lukach's attorney included in the motion a statement that his prior commitments made it "extremely difficult to properly prepare for trial in such [a] short period of time." The circuit court denied the motion for independent testing as untimely. The court did say that it would reserve ruling on the motion as it related to the red truck until it heard the testimony. There was no testimony about the red truck at trial, and no subsequent motion for a continuance was made by Lukach.

Lukach was tried during a period of two days and was convicted of both offenses and given consecutive sentences of life imprisonment for rape and twenty years for burglary. On September 5, 1991, he moved for a new trial, alleging that the Hot Spring County Sheriff's office had received a scientific report on fibers removed from the victim's blanket and sheet and from Lukach's clothing during the second day of the trial which it did not make available to Lukach. The motion for new trial was denied based on lack of prejudice to the appellant.

I. SUFFICIENCY OF THE EVIDENCE

For his first point, Lukach argues that this is a circumstantial evidence case, and that the proof was insufficient for conviction. We do not agree.

The general rule with respect to the sufficiency of the evidence is that the evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).

To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the factfinder to determine. Id. In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is no less substantial because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

The evidence against Lukach in this case, albeit circumstantial, is more than sufficient to sustain the convictions. Rhonda Ivy, a neighbor of the victim, positively identified Lukach after he tried to climb through her child's bedroom window on the morning of the Kane rape and burglary and described what clothes he was wearing.

Mark Stroup, who lived behind Ms. Ivy, also placed Lukach in the crime area and corroborated her description of what he was wearing. He described Lukach's furtive actions and later saw him carrying a sheet with "red stuff" on it. Timothy Jensen also identified Lukach and his clothing.

There was significant physical evidence connecting Lukach to the crimes. A pair of blue jeans and cowboy boots were recovered from the home of Lukach's mother on June 8, 1991. A forensic serologist for the State Crime Lab, Jane Parsons, analyzed Lukach's saliva and blood samples and determined that he was a type AB secretor, which she said was uncommon. The victim was a type A non-secretor. On the victim's underpants, the serologist found stains corresponding to what an AB secretor would produce. Similar stains connecting an AB secretor were found on the victim's blanket.

A second serologist, Lisa Calhoun, also from the State Crime Lab, testified that she found eleven hairs on the victim's bedsheet that were similar to the victim. She also found six pubic hairs similar to hairs taken from Lukach on the bedsheet, and eighteen hairs which she identified as cat hairs. Pubic hairs similar to those of Lukach were also found on the victim's blanket. On Lukach's blue jeans, she found one strand of hair similar to the victim's and two hairs from a cat. The relevance of the cat hairs is Francis Kane testified that a cat slept with the victim.

All of the evidence pointed to the appellant as the assailant, and it was compelling. In light of this evidence, we can ascertain no other reasonable hypothesis consistent with the appellant's innocence, and we affirm the circuit court's ruling on sufficiency of the evidence.

II. CONTINUANCE

Lukach next contends that he was denied a fair trial because he was denied the right to a continuance for the purpose of doing independent testing on the blood, hair, and saliva samples. Lukach moved for a continuance on August 23, 1991, three days before trial and asked for a delay of not less than two weeks. He underscored two factors in his motion. The first was that he did not know what the State Crime Lab results were until six days before trial. The second was that his father did not agree to pay for the testing until the Crime Lab results were made available.

We agree with the circuit court that Lukach's motion on independent testing was untimely under Ark.R.Crim.P. 17.1(c). In his original request for discovery made on July 10, 1991, he did not ask to do scientific testing, although he was well aware that the State was testing hair, blood, and saliva samples because it had taken samples from him on June 17, 1991. When he had not received the state discovery, including the Crime Lab tests, within a reasonable period of time, he could have moved to compel discovery, which he did not do. He apparently made no effort to arrange for an expert to perform the tests prior to filing his motion though he knew trial was set for August 26, 1991. No reason is given for why Lukach's father waited until three days before the trial to appear and agree to pay for the tests. Counsel for Lukach also admitted in his motion that he was busy during this period of time with "prior commitments."

We have held that a defendant should have the opportunity to challenge conclusions drawn from tests undertaken by the State. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). A serious interest in scientific testing, however, must be voiced in timely fashion under Ark.R.Crim.P. 17.1(c) and before the...