Shepherd v. State, CR

• Court: Supreme Court of Arkansas
• Citation: 270 Ark. 457,605 S.W.2d 414
• Docket Number: No. CR,CR
• Parties: Larry SHEPHERD, Appellant, v. STATE of Arkansas, Appellee. 80-108.
• Decision Date: 29 September 1980

Page 414

605 S.W.2d 414 270 Ark. 457 Larry SHEPHERD, Appellant,
v.
STATE of Arkansas, Appellee. No. CR 80-108. Supreme Court of Arkansas. Sept. 29, 1980.

Page 415

[270 Ark. 459] E. Alvin Schay, State Appellate Defender, by Ray Hartenstein, Chief Deputy Appellate Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Appellant Larry Shepherd was found guilty of sexual abuse in the first degree in violation of Ark.Stat.Ann. § 41-1808 (Repl.1977). The alleged victim was Velma Jean Sims, aged eight years, who was a neighbor's daughter, placed under Shepherd's supervision by her mother at the time of the alleged offense. Shepherd was also found guilty of the rape of Kelley Shepherd, his daughter, who was under the age of eleven years. The verdicts of guilty were rendered by a jury after the charges had been joined for trial. Shepherd was sentenced to five years' imprisonment for sexual abuse of the neighbor's daughter and life imprisonment for the rape of his daughter, pursuant to the verdicts rendered. The sentences are to run concurrently. Shepherd only argues two points for reversal. They are:

I

THE IMPOSITION UPON APPELLANT OF A LIFE SENTENCE BY A JURY

EXERCISING STANDARDLESS DISCRETION VIOLATED APPELLANT'S

RIGHT TO DUE PROCESS OF LAW AND HIS RIGHTS UNDER THE EIGHTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

II

IT WAS PREJUDICIAL ERROR TO ALLOW THE PROSECUTOR TO IMPEACH

APPELLANT'S EXPERT WITNESS BY READING FROM A TEXT

THAT WAS NOT ESTABLISHED AS AUTHORITATIVE.

I

[270 Ark. 460] It is difficult to state the basis of Shepherd's argument on this point with any degree of exactitude. As we understand the argument, he does not contend that the imposition of the sentence was cruel and unusual punishment. Shepherd does not contend that the applicable statute, Ark.Stat.Ann. § 41-1803 (Repl.1977) is unconstitutional on its face because it does not establish guidelines for the exercise of a jury's discretion. He does argue, however, that he was denied due process of law under the Eighth and Fourteenth Amendments to the Constitution of the United States by the imposition of a life sentence by a jury exercising "standardless sentencing discretion." The gist of the argument seems to be that the statute, Ark.Stat.Ann. § 41-1803, establishes no degrees of the crime of rape, the definition of which covers a varied range of acts, and that the range of punishment for any of these acts, under Ark.Stat.Ann. § 41-901(1)(a) (Repl.1977), i. e., not less than five years, nor more than 50 years, or life imprisonment, is so wide that it is necessary that the jury be given standards to guide it in its sentence determination in order that the minimal due process requirements be met by minimization of the risk of wholly arbitrary and capricious action by the jury in fixing punishment in any particular

Page 416

case. Specifically, appellant argues that he was denied minimum due process guaranteed him by the Eighth and Fourteenth Amendments through the imposition of a life sentence in this case, because of the following: no permanent injury, either physical or psychological, was done to the victim, Kelley Shepherd, his eight-year-old daughter; that no force or threat of force was involved; that acts similar to those of appellant were performed on Kelley by boys so young that they could not be held criminally responsible; appellant had no prior criminal record, but had a past history of "mental and sexual illness" and a diagnosis of "passive dependent character disorder" for which he had sought treatment, at a time when he was so despondent and remorseful that he had requested castration as a solution to his problem; appellant had voluntarily continued treatments for two years up until April, 1979, when treatment was terminated because the treating physician felt that he had resolved his problem; appellant had a sincere desire to remedy his disorder, as evidenced by his expression of a desire for continued treatment at the time he was sentenced; appellant, since [270 Ark. 461] September 1978, had been in consultation with a SCAN ¹ employee, who had been apprised of the fact that appellant, as a child, had been the victim of sexual attacks by his uncle; and appellant will not be eligible for parole unless his sentence is first commuted to a term of years by executive clemency.

Before we treat the basic due process question, we point out that we find no merit in some of appellant's factual premises. We find no basis for the contention that there is no evidence Kelley Shepherd has suffered any psychological injury. We have no reason to relate the revolting evidence in detail, but we cannot comprehend the argument that there was no basis for a finding of psychological injury to an eight-year-old female, by reason of the acts of her 39-year-old father. There was testimony that he would talk her and her eight-year-old girl friend into putting on "strip acts" in the presence of boys under 13 years of age; would, at least permit, if not encourage, some of these boys to disrobe on some of these occasions; and would disrobe himself on some of these occasions, and not only fondle this child about her private parts, but lay on top of her, put his "woo-woo" in her and move up and down, all in the presence of her girl friend and the male children, who, in his presence, sometimes did the same thing he did. It is also difficult to find any mitigation in the fact that Larry Shepherd observed, permitted and perhaps encouraged the male children to engage in intercourse with his daughter.

The details of appellant's "mental and sexual illness" and the details pertaining to his treatment were related to the jury in considerable detail. It was no doubt considered by the jury, even though no...