95 1693 La.App. 1 Cir. 9/27/96, State v. Steward

• Decision Date: 27 September 1996
• Citation: 95 1693 La.App. 1 Cir. 9/27/96, State v. Steward, 681 So.2d 1007 (La. App. 1996)
• Parties: 95 1693 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 1007

681 So.2d 1007

95 1693 La.App. 1 Cir. 9/27/96

STATE of Louisiana v. Gregory STEWARD.

No. KA 95 1693.

Court of Appeal of Louisiana First Circuit.

Sept. 27, 1996.

Richard Teissier, New Orleans and J. Kevin McNary, Covington, for Defendant-Appellant Gregory Steward.

Walter P. Reed, Covington and William R. Campbell, Jr., New Orleans, for Appellee State of Louisiana.

Before WHIPPLE, PITCHER and FITZSIMMONS, JJ.

[95 1693 La.App. 1 Cir. 2] WHIPPLE, Judge.

Gregory Steward was charged by bill of information in count one with attempted forcible rape, a violation of LSA-R.S. 14:27 and 14:42.1, and in count two with second degree kidnapping, a violation of LSA-R.S. 14:44.1. Defendant pled not guilty and, after trial by jury, was convicted as charged on both counts. The trial court sentenced defendant to serve a term of five years at hard labor on count one and twelve years at hard labor on count two, to run concurrently to each other, and with credit for time served. The trial court further ordered that one year of the sentence on count one and six years of the sentence on count two be served without benefit of parole, probation or suspension of sentence. Defendant has appealed, urging fifteen assignments of error. The assignments of error designated in the record as numbers six, seven, eight and eleven were not briefed on appeal and, therefore, are considered abandoned. See Uniform Rules--Courts of Appeal, Rule 2-12.4.

Facts

On September 14, 1993, Ms. S. H., hereinafter referred to as the victim, was brutally beaten, dragged across a parking lot and ordered to remove her pants. The record reveals that she had spent the evening with two female friends, Miranda Trombatore and Tammy Lange, drinking and playing cards and board games at Tammy's home. She had left her vehicle at Miranda's house, and rode with Miranda to Tammy's home. At some point, the victim decided that she was ready to leave, but Miranda was not. The victim decided to walk back to Miranda's home, which was a couple of blocks off of Ponchartrain Boulevard in Slidell, LA, to get her car and go home.

As she was walking down Ponchartrain Boulevard on the side of the road, an assailant approached her. Initially believing that the man intended to rob her, she began screaming and "slung" her purse to the ground near him. However, the assailant grabbed her instead, and began telling her to shut up, as he repeatedly punched her in the face and [95 1693 La.App. 1 Cir. 3] pulled her by the hair. She fought with the assailant, who called her derogatory names, and who stated at one point during the struggle that he was going to kill her when she did not stop screaming. While she begged him to stop, he ordered her to take off her pants. Since she was not complying quickly enough, the assailant forcefully pulled off the victim's pants and panties himself.

The assailant continued pulling her away from the well-lit area at the road's edge, and violently pulled her along, resulting in the dislocation of the victim's shoulder. As she kicked and screamed, he continued dragging her away from the road. The struggle continued for several minutes as the assailant pulled her by the hair and arm toward a dark area in the back of a bank. She was dragged over an area of grass and then concrete before the assailant allowed her to get to her feet. As the assailant started to run and pull the victim along beside him, his hand slipped, and she broke free and ran away. At no time during the struggle did the assailant indicate by his words or his actions that he intended to rob the victim, and her purse and other items were later retrieved from the area where the victim was first attacked by the assailant.

As she ran back to the street, she stopped only long enough to grab her pants. When she reached the street, a man driving a Hubig's Pie truck stopped and picked her up. He drove her to a nearby Time Saver store. She had to ask someone to help her get dressed because she could not do so with a dislocated shoulder. While she was at the Time Saver store being treated by emergency technicians, the police brought the defendant into the Time Saver store for her to identify. Without hesitation, she positively identified defendant as the perpetrator.

Officer James Mathis with the Slidell Police Department stated that he was on routine patrol on the night in question when he observed a blue midsize vehicle approach him from the rear at a high rate of speed. At the time, he was approximately one-half mile from the bank on Ponchartrain Boulevard where the victim was assaulted. He [95 1693 La.App. 1 Cir. 4] attempted to stop the vehicle, but the driver refused to stop. Instead, the driver continued northbound, and proceeded through a red light and stop sign. Officer Mathis pursued the vehicle at speeds in excess of seventy miles an hour. Minutes later, the vehicle was stopped at a police roadblock set up nearby, and defendant was placed under arrest for reckless operation of a motor vehicle. Officer Mathis then received a call that there had been an attempted rape on Ponchartrain Blvd. and realized that defendant and his vehicle fit the general description in the attempted rape incident nearby.

Todd Sniff, who had been at the Time Saver store before the attack, saw a black male driving a light blue car at a high rate of speed coming out from behind the building from which the victim had run. Officer Kevin Dupuy, who had assisted in stopping defendant at the roadblock, interviewed Mr. Sniff. After hearing Mr. Sniff's description of the vehicle, Officer Dupuy broadcast the message that defendant fit the description of a person seen leaving the scene of the attempted rape. Defendant was then transported to the store, where the victim immediately identified him as the assailant. Defendant was ultimately charged and convicted after a jury trial of one count of attempted forcible rape and one count of second degree kidnapping.

Defendant testified at trial that he was unfamiliar with the Slidell area, and had been seeking a club called Diamonds & Pearls. He maintained that he saw the victim sitting on the side of Ponchartrain Blvd. with her hands cupped over her face. He stated that he only stopped to help her. When he asked her what was wrong, he noticed that she had been beaten. According to defendant, she then jumped up and started swinging at him. He stated he could not remember whether or not the victim was partially nude when he approached her. Defendant testified that someone else came up and defendant "took off." He stated that he did not "want to be put in a situation where [he] was accused of anything. So that's why [he] got scared and ran." He further claimed that for this same reason, he did not stop when the police officer tried to stop him.

[95 1693 La.App. 1 Cir. 5] Admission of Photographs

By assignment of error number twelve (defense brief number eight), defendant argues that the trial court erred in allowing photographs of the victim to be admitted into evidence over his objections. Specifically, defendant maintains in his original brief that the prejudicial value of state exhibit number six, which shows the "bloody, swollen face" of the victim, outweighs the possible probative value thereof. Defendant does not cite any authority for this proposition or present any argument beyond this bare assertion.

LSA-C.E. art. 401 provides:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

LSA-C.E. art. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, are generally admissible, provided their probative value outweighs any prejudicial effect. State v. Glynn, 94-0332, p. 9 (La.App. 1st Cir. 4/7/95); 653 So.2d 1288, 1298, writ denied, 95-1153 (La.10/6/95); 661 So.2d 464. The trial court's admission of allegedly gruesome photographs will be overturned on appeal only if the prejudicial effect of the photographs clearly outweighs their probative value. No error will be found unless the photographic evidence is so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence. State v. Perry, 502 So.2d 543, 559 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). In the instant case, the one photograph referred to in brief by defendant depicted the nature and extent of injuries the victim received during the commission of these crimes. The photograph was certainly [95 1693 La.App. 1 Cir. 6] relevant, and its probative value outweighed any prejudicial effect. Thus, this assignment of error is without merit.

In a related argument, defendant contends in assignment of error number fifteen (defense brief number eleven), that the trial court erred in allowing photographs of the victim to be shown to the jury upon the jury's request during deliberations. Defendant acknowledges that LSA-C.Cr.P. art. 793 and the jurisprudence provide authority for photographs to be provided to the jury upon request. However, the defense renews its argument that state exhibit number six was inflammatory and prejudicial, again stating that the prejudicial effect of this photograph "greatly outweighed any possible probative value," and thus, should not have been submitted to the jury. As stated above, we find no merit to defendant's argument. Moreover, there was no error in allowing the jury to view the photograph during deliberations. Accordingly, this assignment of error is likewise without merit.

Admission of...