State v. Lard

• Decision Date: 26 September 1990
• Docket Number: No. 21808-KA,21808-KA
• Citation: 568 So.2d 629
• Parties: STATE of Louisiana, Appellee, v. Jeffery LARD, Appellant. 568 So.2d 629
• Court: Court of Appeal of Louisiana — District of US

Page 629

568 So.2d 629

STATE of Louisiana, Appellee, v. Jeffery LARD, Appellant.

No. 21808-KA.

568 So.2d 629

Court of Appeal of Louisiana Second Circuit.

Sept. 26, 1990.

May & Beal by James E. Beal, Jonesboro, for appellant.

William J. Guste, Jr., Atty. Gen. Baton Rouge, John C. Blake, Dist. Atty., H. Russell Davis, Asst. Dist. Atty., Arcadia, for appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

A jury found defendant, Jeffery Lard, guilty of attempted forcible rape, LSA-R.S. 14:27 and 14:42.1, as indicted. A sentence of 25 years at hard labor, with one year to be served without benefit of probation, parole or suspension of sentence, followed his adjudication as an habitual offender and the trial court's receipt of a presentence investigation report.

Defendant now appeals, reserving three assignments of error. For the reasons hereinafter expressed, we affirm both the conviction and sentence.

FACTS

Between 8:00 and 9:00 a.m. on January 11, 1989, defendant, then 18 years of age, presented himself at the home of JF, a 61-year-old female, and requested that she allow him to sweep leaves in her yard. After first questioning whether earlier rains had not made such work too difficult, she instructed him on where to begin. Defendant had worked at the residence before, and JF had known him and his family for many years.

In response to defendant's request that she call her son concerning any yard work he needed performed, JF utilized the telephone in her bedroom, the first convenient room after entering the house. Upon terminating a brief phone conversation with her daughter-in-law, she turned to find defendant standing in the same room at the foot of a twin bed. After explaining that her son had no need for yardwork that day, JF then walked toward the door, expecting defendant to follow. Instead, he grabbed her and demanded that she sexually submit to him or else he would kill her. When she responded, "I am prepared to die and I'd rather die," defendant threw her on the bed and began choking her, causing her to momentarily lose consciousness.

After coming to, she kicked defendant and caused him to fall against the other twin bed. She quickly reminded him of her daughter-in-law's awareness that he was at the residence, and stated that an employee of her son would be arriving shortly. Defendant decided to leave, but first cautioned JF that he would kill her if she told anyone of his actions. Seizing the opportunity to arm herself, JF grabbed a brass picture frame, swung it at defendant, and told him he could kill her but people would know he did it.

Upon defendant's departure, JF telephoned her daughter-in-law to immediately come to the home. After complying with that request and learning of the attack, the daughter-in-law promptly called the sheriff's department. Officers began their investigation and later arrested defendant, after his father located him approximately two to three miles from JF's home.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant complains of the trial court's refusal to allow cross-examination of the victim in reference to her marital status and relationship with her husband. He contends such a limitation violated his right of confrontation accorded by LSA-Const. Art. 1, Sec. 16 (1974), given that no physical evidence connected him to the crime.

Defense counsel succeeded in eliciting testimony from JF that she and her husband had separate bedrooms. However, in response to further efforts to explore the sleeping arrangments, the state objected on relevancy grounds. Reacting to that objection, defendant's attorney explained:

Mr. Mullins: I've got, if I can get them here this afternoon or tomorrow regarding the relationship between she and her husband, they were at odds. He was living somewhere else, Your Honor. She's come in and testified that her husband left at 4:00, etc., etc., etc., Your Honor, I'm trying to show--what I'm trying to get to that this is nothing more than a ploy on her part to get her husband's attention and that's exactly where I'm going, Your Honor. I think I'm entitled to some leeway, Your Honor.

The Sixth Amendment and LSA-Const. Art. 1, Sec. 16 (1974) guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. Confrontation, for constitutional purposes, means more than being allowed to attend the trial and hear the witnesses. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); J. Wigmore, Evidence Sec. 1395, p. 123 (3d ed. 1940). Accord State v. Hillard, 398 So.2d 1057 (La.1981); State v. Giordano, 259 La. 155, 249 So.2d 558 (La.1971). Cross-examination is the primary means by which the believability of a witness and the truth of his testimony are tested. Hillard, supra.

The extent of cross-examination is not without limitation, however. In order for evidence to be admissible at trial, it must be relevant. Relevant evidence is that:

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. 401.

The determination concerning relevancy of tendered evidence, and therefore the scope and extent of cross-examination, is within the discretion of the trial judge whose rulings will not be disturbed in the absence of an abuse of discretion. State v. Donald, 440 So.2d 862 (La.App. 2d Cir.1983), writ denied, 443 So.2d 1126 (La.1984).

By querying JF about sleeping arrangements, defense counsel sought to demonstrate marital disharmony between the victim and her spouse, and to create doubt about the motive for her accusations. We, however, concur with the trial court's ruling that this line of questioning was irrelevant. Certainly, from the fact of the couple's separate bedrooms, it is too tenuous to infer that the wife would fabricate the attempted rape.

Without objection, the defense asked JF about the amount of time her husband was away from home overnight, previous marital problems including a legal separation in 1947, and a supposed affair her husband had. Similar questions posed to the victim's son, daughter-in-law, and a neighbor, elicited no answers substantiating defendant's contentions. Moreover, defendant failed to produce any witness who could testify to the couple being estranged.

Our review discloses no abuse of discretion by the trial judge in controlling the breadth of cross-examination. In fact, the record reflects defendant to have been granted substantial latitude in exploring the indicated subject matter. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By the next assignment of error, defendant challenges the sufficiency of the evidence to support his conviction. He argues that the lack of physical evidence linking him to the crime scene renders it inconceivable that a jury could be convinced of his guilt beyond a reasonable doubt.

The criterion for reviewing sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that all the elements of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984); State v. Chism, 436 So.2d 464 (La.1983). That standard, initially enunciated in Jackson, and legislatively adopted with the enactment of LSA-C.Cr.P. Art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Willis, 446 So.2d 795 (La.App.2d Cir.1984).

There is no physical evidence indicating that defendant entered the victim's home and assaulted her in the bedroom. The only item she recalled that he may have touched was the doorknob at the entrance to the carport, but an attempt to secure fingerprints there proved unsuccessful. The entry hallway and bedroom were carpeted, and no footmarks appeared in the house. An inspection of the shoes defendant wore on the day of the incident revealed no carpet fibers. Although JF testified to swinging the picture frame at defendant, she did not strike him or inflict any wounds which would have yielded tissue or blood samples supporting her revelations.

Only the victim's testimony placed defendant in the home. Yet this evidence does not stand alone, but is corroborated by the other witnesses.

JF stated that once defendant left her home she became hysterical. The first two people to arrive at the scene, the daughter-in-law and son, confirmed the victim's emotional state, as did Deputy Lucky Raley, who described her as very shaken but coherent. JF indicated defendant initiated the attack by grabbing her around the arms, throwing her onto the bed, and choking her until she lost consciousness. Her daughter-in-law observed red blotchy marks on her neck and blue blotchy areas on her face. Her son also reported her having facial discolorations. Dr. Boersma, JF's regular physician who examined her later in the day, described hemorrhages on her face, eyelids, forehead and soft palate, which could have been caused by someone attempting to choke or strangle her. He noted tenderness in her rib area and, some two months later, diagnosed a broken rib. Although finding no bruises on her arms or neck, he explained that it was not unusual for 24 to 36 hours to lapse before these appeared, and that such disfeaturements might never develop if the trauma consisted of pressure without movement.

Defendant admitted being at JF's home during the morning in question. A neighbor, who engaged him in conversation as he left the victim's driveway, testified that defendant appeared "shaky."

It is not the function of appellate courts to reevaluate credibility of witnesses and then proceed to...