State v. Austin

• Decision Date: 18 May 1981
• Docket Number: No. 80-KA-2403,80-KA-2403
• Parties: STATE of Louisiana v. Michael James AUSTIN.
• Court: Louisiana Supreme Court

Page 158

399 So.2d 158

STATE of Louisiana v. Michael James AUSTIN.

No. 80-KA-2403.

Supreme Court of Louisiana.

May 18, 1981.

Dissenting Opinion June 17, 1981.

Rehearing Denied June 22, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Paul D. White, Jr., Asst. Dist. Atty., for plaintiff-appellee.

Charles J. Yeager of Kennedy & Yeager, H. Dillon Murchison, Alexandria, for defendant-appellant.

CALOGERO, Justice. ^*

The Rapides Parish Grand Jury indicted defendant Michael James Austin for aggravated rape in violation of R.S. 14:42. Following trial, the twelve member jury returned a unanimous verdict of guilty of forcible rape. The trial judge sentenced defendant to twenty-five years at hard labor, two years to be without benefit of probation or parole. On appeal to this Court defendant argues that the verdict is contrary to the law and evidence because the state's case was based entirely on circumstantial evidence which did not exclude every reasonable hypothesis of innocence as required by R.S. 15:438.

The chief evidence linking defendant to the rape is a shoe print left on a magazine when the offender climbed through the window of the victim's trailer. The victim testified that it was dark and she did not see her attacker, even enough to identify his race. The police investigating the crime were unable to lift any latent fingerprints at the crime scene. In addition to the shoe print on the magazine, there was a shoe print left in the soil under the window of the trailer. Police made a plaster cast of this print, but positive identification of the shoe which made the print could not be established.

The state's case rested primarily upon evidence given by F.B.I. agent Gary Kanaskie. The defense stipulated that Agent Kanaskie is an expert in the area of shoe print and tire tread impression identification. Agent Kanaskie testified that he compared the shoe print on the magazine with a tennis shoe supplied him by the Alexandria police and that he concluded that the tennis shoe made the print. The witness said that he was 100% certain that the print was made by that shoe to the exclusion of all the other shoes in existence in the world. He explained how the comparison was made on the basis of the wear sustained by the shoe. Using photographic enlargements of the print on the magazine and a print made by the tennis shoe, Agent Kanaskie pointed out that besides the size and design being the same the wear pattern on the horizontal cross ribs was the same on both. The agent marked with red arrows the points of correspondence between the two. He explained that the sole of a shoe develops a unique pattern as the result of general wear, being cut by sharp objects such as rocks and nails, and by foreign objects adhering to the sole.

To tie the shoe submitted to Agent Kanaskie with the defendant, the state offered the testimony of Investigator Herman Walters of the Alexandria police. Walters told of going to the home of defendant's grandmother, with whom defendant lived. According to Walters, defendant's mother was present at the time and took the pair of tennis shoes from under the bed in the rear room which was defendant's bedroom. Defendant's mother who was called by the state, corroborated that the shoes were under defendant's bed, but said that the policeman removed them from that location and gave her a receipt for them. She also conceded that defendant owned a pair of tennis shoes like the ones under his bed.

Although defendant did not take the stand in his own behalf, his sister testified that defendant and the son of another sister were approximately the same size and had worn the same clothing from time to time. It is this testimony on which defendant relies to argue that the circumstantial evidence presented by the state does not exclude every reasonable hypothesis of innocence. Defendant further stresses that Agent Kanaskie stated that his evidence could not establish what person was wearing the shoe at the time the print was made at the scene of the crime.

It is true that the state offered no evidence to rebut the testimony of defendant's sister. However, her testimony must be examined in its entirety to determine whether it establishes a reasonable hypothesis of innocence. Significantly, we note the testimony of this witness that defendant and his nephew were not members of the same household at the time of the crime. Additionally, this sister stated that defendant had lived with the other sister at the time of his graduation from high school which was several months before the instant offense. It was while defendant was living with his sister, i. e., months before and not around the time of the crime, that the two young men wore some of the same clothing, according to the testimony of this witness. Her testimony further establishes that the clothing being shared belonged to defendant alone and that there were heated arguments when the nephew borrowed the clothing without defendant's permission.

Defendant argues that because the magazine bearing the shoe print is dated June 1979 and the rape occurred on August 26, 1979, the print could have been left on the magazine at any time between June and August 26. This argument ignores the testimony of the victim that there was no shoe print on the magazine prior to the night of the rape. The magazine, a consumer newsletter, was on top of a small table beside the chair where the victim sat to watch television and she testified that she frequently read it while watching TV because it had many items of interest in it.

It is the defense position that R.S. 15:438 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), require a reversal of the conviction. Under the Jackson standard, the appropriate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Guillot, 389 So.2d 68 (La.1980). This Court has not yet enunciated a Jackson standard of review when the state's case is founded entirely upon circumstantial evidence although it has addressed the situation in general terms. See e. g. State v. Gould, 395 So.2d 647 (La.1981).

Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

While direct evidence consists of testimony from a witness who actually saw or heard an occurrence proof of the existence of which is at issue, such evidence is not always available. Frequently, the state must rely on circumstantial evidence to prove the existence of the fact to be proved. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. ¹ In this case, the fact in dispute is who committed the rape. Pertinent to that inquiry is who was wearing the tennis shoe at the time the footprint was made on the magazine as the attacker entered the trailer. The state offered the testimony of the police officer who found the shoe under defendant's bed, the testimony of defendant's mother who identified the shoe as the one removed from under her son's bed and said that defendant owned shoes like it, and the testimony of the F.B.I. agent who testified that the tennis shoe removed from under defendant's bed made the shoe print on the magazine.

The defense did not offer direct testimony to refute the evidence of the state. Rather, defendant's sister testified that at one time the son of another sister used to borrow defendant's clothing. She did not testify that on the night of the crime this nephew was wearing the fateful sneaker.

From the evidence presented by both the state and defense the jury was asked to infer the existence or nonexistence of the fact at issue: Was defendant wearing the tennis shoe which made the shoe print found at the crime scene? The inference that defendant was wearing the shoe must be a reasonable one. Further, to convict defendant, that inference made by the jury must exclude every reasonable hypothesis of innocence. It need not, however, exclude every other possible theory. For example, it is possible that someone had stolen the tennis shoes to wear while committing the rape and then placed the shoes under defendant's bed where they were found by the police. While this is a possible explanation, it is not a reasonable one for the set of circumstances and facts presented to the jury. The possibility that two people, one of them the defendant, entered the trailer on the night of the crime and that the other person perpetrated the rape is equally unlikely considering the evidence presented in the case. The only hypothesis of innocence which might be supported by the evidence is that the nephew, wearing defendant's tennis shoes, committed the rape. The jury rejected that hypothesis as not being a reasonable one.

Viewing evidence presented at trial in the light most favorable to the prosecution, we note the following. The tennis shoe was found under defendant's bed and defendant's mother testified that he owned tennis shoes like it. Defendant stipulated to the expertise of the witness who testified that defendant's tennis shoe, to the exclusion of all other shoes in the world, made the print on the magazine at the crime scene. The victim testified that there...