State v. Briggs

• Decision Date: 11 May 1988
• Docket Number: No. CR87-1123,CR87-1123
• Citation: 526 So.2d 297
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Wesley BRIGGS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 297

526 So.2d 297

STATE of Louisiana, Plaintiff-Appellee, v. Wesley BRIGGS, Defendant-Appellant.

No. CR87-1123.

Court of Appeal of Louisiana,

Third Circuit.

May 11, 1988.

Linda Veazey, Public Defender Office, Abbeville, for defendant-appellant.

J. Nathan Stansbury, Dist. Atty., Louis Garrot, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.

Before FORET, STOKER and DOUCET, JJ.

DOUCET, Judge.

Wesley Briggs was indicted by a Vermilion Parish grand jury on October 17, 1985, for aggravated rape, a violation of La.R.S. 14:42. Following jury trial on April 7, 1987, defendant was convicted of forcible rape, a violation of La.R.S. 14:42.1. The State filed a multiple offender bill to which defendant pleaded not guilty. The trial court denied defendant's Motions for Post Verdict Judgment of Acquittal and in the alternative for a new trial. ¹ He was sentenced as an habitual offender to sixty years at hard labor of which a minimum of two years is to be served without benefit of parole, probation or suspension of sentence. On appeal defendant cites four assignments of error.

FACTS

On September 19, 1985, the victim in this case, Edna Tennel, was walking home from a motel in Abbeville where she had been playing cards with four women and a man who continued playing after she left. The victim, who had discontinued cohabitation with her paramour one week earlier and later reconciled with him after the rape, left the card game about 1:00 a.m. and noticed a car behind her from which a black male, whom she had not seen before, emerged and began to follow her. She quickened her pace but was grabbed from behind and pushed behind a house. The victim tried to cry out but was held with her arms behind her and a hand over her mouth and ordered to keep silent in a threatening manner. It was at this point that she was stripped of her clothing and forced to submit to sexual intercourse. The victim told her assailant that she had to return home quickly because her children were unattended. The rapist replied that he would escort her home. The victim agreed out of fear of further harm, leaving at the scene of the attack her cigarette purse containing a small pocket knife and a larger knife she had carried in her bra for protection but was unable to use during this attack. Upon arriving home, the victim's daughter opened the door. The defendant asked for a cigarette light which the daughter provided. The victim went to the kitchen to clean up but called police immediately upon defendant's exit from the house. The daughter, Carmen Tennel, recognized defendant from the neighborhood and knew his last name was Briggs. The police arrived shortly and found the victim crying and visibly shaken. The victim's shirt was inside out with dirt on the back and her shorts also soiled. The victim's knees were dirty and her hair was disheveled with dirt and grass in it. The police had seen a subject matching the description given by the victim on their way to the call a few blocks away and arrested him. The items that the victim claimed to have left at the scene of the assault were found by the police at the place the victim described. An examination by the coroner noted soil on the back of the victim's legs and buttocks but no bruises, although the victim claimed her arm was hurt and swollen from being twisted. Also, the coroner noted the distraught behavior of the victim during the preparation of the rape kit. A serologist found a small amount of semen from the coroner's vaginal swab but insufficient cellular material to compare to appellant's blood type. A forensic chemist found foreign hairs in the pubic combings of the victim which, while not capable of being individualized to defendant, were microscopically compatible with a sample of defendant's pubic hair. The victim and her daughter both picked defendant out of separate lineups. The defense evidence consisted of two of defendant's sisters and a friend of defendant's father and her boyfriend, all testifying that they had seen defendant and the victim walking together "huggingly and lovingly" sometime on the night of the rape.

ASSIGNMENT OF ERROR NO. 1:

Defendant asserts that the court clerk, in reading his not guilty plea to the jury, referred to his presence at arraignment with court-appointed counsel. This is urged as an impermissible reference to his indigency which denied him his right to due process of law.

It is to be noted at the outset that a problem exists with La.C.Cr.P. art. 841, concerning a contemporaneous objection being present here to preserve the error on appeal. When the challenged remark was read to the jury, no objection per se appears in the record. The defense counsel asked to approach the bench at which time an off-the-record discussion occurred. Then the proceedings resumed without an objection being noted for the record. Discontent was no doubt expressed to the judge during the off-the-record discussion. Defendant has stated in his brief that the conference at the bench off-the-record contained an objection to the remark and a request for a mistrial. Counsel's declaration in brief, in conjunction with the record's confirmation of the discussion, should suffice although an objection on the record would be the proper method of preserving the error for appellate review.

On the merits, defendant's argument appears to address an allegedly prejudicial remark which has not been previously argued in this state. La.C.Cr.P. art. 770, which sets forth the prejudicial remarks which mandate a mistrial, does not encompass references to indigency. When a remark or comment is made that might create prejudice to the defendant, yet is not within the scope of La.C.Cr.P. art. 770, the trial judge shall admonish the jury to disregard the comment or grant a mistrial if admonishment cannot overcome the damage to a fair trial. La.C.Cr.P. art. 771. Here, defendant states that only a mistrial was requested thereby negating any question as to whether an admonition to the jury should have been made. State v. Baldwin, 388 So.2d 664 (La.1980); State v. Egena, 369 So.2d 1295 (La.1979); State v. Matthews, 354 So.2d 552 (La.1978).

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Goods, 403 So.2d 1205 (La.1981); State v. Heads, 370 So.2d 564 (La.1979); State v. Overton, 337 So.2d 1058 (La.1976). Where the reference to defendant's poverty made in argument by the state in a manner intended to inject class prejudices into the verdict, a much different situation would present itself. However, here the reference is merely incidental in the fulfillment of the requirement to read the defendant's plea on arraignment. La.C.Cr.P. art. 765(3). No references to defendant's indigency were made and the jury was instructed that its verdict should be limited to the evidence and testimony presented during the trial.

In some other jurisdictions, a prosecutor's arguments referring to the defendant's poverty, lack of employment, lack of fixed habitation, and the like have in some instances, been held prejudicial. See generally, Annot. 36 A.L.R.3d 839 Sec. 9 (1971); Annot. 78 ALR 1438 (1932). However, in most cases where error was found harmless in prosecutorial comments on a defendant's impecuniosity, the distinction is between that of a brief reference and an equation of proverty with guilt. See e.g. State v. Copeland, 94 N.J.Super. 196, 227 A.2d 523, 36 A.L.R.3d 830 (1967); People v. Nelson, 86 Mich.App. 651, 273 N.W.2d 512 (1978); People v. Martin, 75 Mich.App. 6, 254 N.W.2d 628 (1977). This is similar to the rule that the wealth of a defendant cannot be argued as indicative of corruption or wrongful gain. United States v. Stahl, 616 F.2d 30 (2d Cir.1980); United States v. Socony-Vacuum Oil Co., reh. den., 310 U.S. 658, 60 S.Ct. 1091, 84 L.Ed. 1421 (1940).

Defendant points to no case where the mere mention by the deputy clerk of a defendant as appearing with court-appointed counsel approaches a prosecutorial attempt to argue guilt from poverty. It is likely that some, if not all, of the jury did not connect the reference to a finding of indigency of defendant, much less become prejudiced against him because of the remark. It has not been shown how defendant was denied the possibility of a fair trial. Therefore, the denial of a mistrial by the trial judge was not erroneous. We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that the trial judge erred in denying appellant's motion for a post verdict judgment of acquittal, or in the alternative, his motion for a new trial. The motion urged an insufficiency of the evidence in its showing that defendant committed the rape, or that any rape occurred.

The standard of appellate review in evaluating the sufficiency of the evidence is whether a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that the state proved the elements of the crime beyond a reasonable doubt. State v. Camp, 446 So.2d 1207 (La.1984); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Since the evidence is legally sufficient to show the two facts that defendant claims were not proved, the trial judge was not in error when he denied defendant's motion.

Defendant points to inconsistencies in the victim's testimony. Also, evidence that the victim had been drinking, that she had just broken up with her jealous boyfriend, that the victim was armed but not her attacker, and that no bruises or scratches, but only dirt and grass were found on the victim, are cited as showing the implausible nature of the victim's claim.

However, the victim testified that she was grabbed from behind and pushed behind a house. She tried to scream and struggle but was prevented. The attacker...