Edwards v. Butler, 88-3665
| Decision Date | 01 September 1989 |
| Docket Number | No. 88-3665,88-3665 |
| Citation | 882 F.2d 160 |
| Parties | 28 Fed. R. Evid. Serv. 1160 Lionel EDWARDS, Petitioner-Appellant, v. Robert H. BUTLER, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lionel Edwards, Angola, La., pro se.
Terry M. Boudreaux, Dorothy A. Pendergast, Asst. Dist. Attys., John Mamoulides, Dist. Atty., Research & Appeals, Gretna, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before KING, JOHNSON and JOLLY, Circuit Judges.
In this pro se appeal of the district court's denial of his section 2254 habeas petition, Lionel Edwards alleges numerous violations of his constitutional rights during state court proceedings. Finding Edwards' assertions meritless, we affirm.
At about 9 a.m. on April 11, 1980, Janetta Doty was asleep on a couch in her apartment when she was awakened by two men who put a cloth sack over her head and led her to an upstairs bedroom. Through the cloth sack Doty could see that one of the assailants was armed with a knife. In the upstairs bedroom the two men stripped her and then each raped her. Following the rape Doty was taken downstairs. Before the assailants left the house, Doty heard one of them moving heavy objects from one of the upstairs bedrooms. After they left, Doty found that a stereo and television had been taken from one of the upstairs bedrooms. Doty testified that she could see through the cloth sack and recognized as one of the assailants Lionel Edwards, whom she had previously met on one occasion. She also identified Edwards in a police photo line-up. Doty identified co-defendant Isiah Vining as the other assailant and the one armed with a knife.
A neighbor, Debbie Kerwin, testified that on the morning of April 11, she saw Edwards and Vining standing by a car in front of the Doty apartment. Another neighbor, Nedra Martin, saw Edwards and Vining leave the Doty house about 10:00 a.m. on the morning of April 11 with a television and stereo; Martin saw the defendants place the objects in a car.
After reporting the rape to the police, Doty was seen by Dr. Barbara Deming. Dr. Deming's evaluation of Doty did not show the presence of semen. Dr. Deming testified, however, that Doty showed signs of trauma and that this was consistent with Doty's statement that she was raped. A clinical psychologist and a clinical social worker who evaluated Doty some time after April 11, testified that her behavior was consistent with someone who suffered a violent and traumatic sexual assault.
On October 6, 1980, Edwards and Vining were convicted by a Jefferson Parish Louisiana jury of the aggravated rape of Janetta Doty. Edwards was sentenced to a mandatory sentence of life without parole pursuant to La.Rev.Stat.Ann. Sec. 14:42. His petition for post-conviction relief was denied by the Louisiana courts. Edwards v. Blackburn, 496 So.2d 343 (La.1986).
Edwards then brought this 28 U.S.C. Sec. 2254 habeas corpus petition containing the following contentions: his right against self-incrimination was violated when police officers took his photo following his arrest and later used this photo in a photo line-up where Edwards was identified; the state improperly introduced evidence at trial concerning an extraneous offense; the jury was not properly impanelled under Louisiana law; the prosecutor engaged in improper comments; the court improperly charged the jury; the evidence was insufficient to prove Edwards' guilt beyond a reasonable doubt; the Louisiana rape statute is unconstitutionally vague because the law does not provide a standard for distinguishing forcible rape from aggravated rape; his mandatory sentence of life without parole is unconstitutionally excessive; and the trial court failed to state its reasons for imposing the sentence as required by Louisiana law.
The district court held that there was no merit to any of Edwards' claims and thus denied the petition. Edwards filed a timely notice of appeal.
Edwards' first contention is that the state's evidence was insufficient to prove beyond a reasonable doubt that he was guilty of the crime charged. Edwards was charged with and convicted of aggravated rape under La.Rev.Stat.Ann. Sec. 14:42(A)(2) (West 1986). The statute defines "aggravated rape" as anal or vaginal intercourse without the consent of the victim "[w]hen the victim is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution." In Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), the Supreme Court held that where a habeas petitioner challenges the sufficiency of the evidence on due process grounds, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
Given Doty's testimony that Vining was armed with a knife and that Edwards joined in the rape, as well as the testimony of her neighbors and the medical and psychological experts, we hold that a reasonable jury could easily conclude beyond a reasonable doubt that Edwards raped Doty and that her resistance was prevented by "threats of great and immediate bodily harm." Thus, Edwards' insufficiency of the evidence argument is without merit.
Edwards contends that the Louisiana aggravated rape statute is unconstitutionally vague because the definition of aggravated rape at the time of the offense was indistinguishable from the statutory definition of forcible rape. La.Rev.Stat.Ann. Sec. 14:42.1(A) (West 1986) defined forcible rape as
a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
At the time of the offense La.Rev.Stat.Ann. Sec. 14:42(A)(2) (West 1986) defined aggravated rape as
a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim ... [w]hen the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
Forcible rape is punishable by imprisonment at hard labor for not less than two nor more than forty years. La.Rev.Stat.Ann. Sec. 14:42.1(B). Aggravated rape is punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.Rev.Stat.Ann. Sec. 14:42(C).
In State v. Parish, 405 So.2d 1080, 1086-87 (La.1981), the Louisiana Supreme Court held that the two statutes are distinguishable based on the "degree of force employed and the extent to which the victim resists." A conviction for aggravated rape requires a showing of a greater degree of force than one for forcible rape, a lesser included offense. The Louisiana Supreme Court concluded that the legislature intended to divide coerced sexual intercourse into two categories, assigning the jury the function of fixing the range of permissible punishment for offenders by returning a verdict that fits the crime and degree of force employed. Id. at 1087.
The fact that the two crimes may overlap to some degree does not make the Louisiana rape statute unconstitutionally vague. In United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979), the United States Supreme Court rejected a void-for-vagueness challenge to overlapping federal firearm statutes, reasoning as follows:
Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.
See also United States v. Brewer, 528 F.2d 492, 498 (4th Cir.1975). Since the Louisiana rape statute clearly defines the conduct prohibited and punishment authorized, it is constitutional under Batchelder.
Edwards next argues that the trial court violated La.Code Crim.Proc.Ann. art. 784 (West 1981), which provides that "[i]n selecting a [jury] panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court." Edwards contends that the jurors were not called randomly, but, in violation of Louisiana law, were selected by the court in the order that the jurors' names appeared on a jury commission list.
It is not clear from Edwards' pro se petition and brief what the factual basis is for his claim that the state violated article 784 since the record contains no evidence that the jurors were not selected at random from a panel of jurors. In any event, the alleged violation of a state procedural rule, without more, is not a constitutional violation or a violation of federal law, and thus not a cognizable ground for habeas relief. See Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984).
Edwards argues further that his right against self-incrimination and his right to counsel were violated when the police photographed him following his arrest and later used the pictures in a photo line-up in which the victim identified Edwards. Edwards states that at the time these photographs were taken he was not advised that they would be used against him and that he did not have counsel nor was he advised of his right to counsel.
At the outset, we note that these photographs were color polaroids, not "mugshots" indicating that the defendant had a criminal history. Thus, they were not prejudicial as were the photographs admitted at trial in ...
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