State v. Savage
| Decision Date | 23 June 1993 |
| Docket Number | No. 24881-KA,24881-KA |
| Citation | 621 So.2d 641 |
| Parties | STATE of Louisiana, Appellee, v. Jeffrey Andre SAVAGE, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Carso & Noel by Robert S. Noel, II, Monroe, for appellant.
Richard Ieyoub, Atty. Gen., Baton Rouge, Jerry L. Jones, Dist. Atty. and Michael A. Jedynak, Asst. Dist. Atty., Monroe, for appellee.
Before LINDSAY, VICTORY and WILLIAMS, JJ.
The defendant, Jeffrey Andre Savage, appeals from his convictions of two counts of aggravated rape, in violation of LSA-R.S. 14:42; one count of attempted aggravated rape, in violation of LSA-R.S. 14:27 and 14:42; and three counts of first degree robbery, in violation of LSA-R.S. 14:64.1. For the reasons assigned below, we affirm.
In the early morning hours of April 21, 1990, the defendant broke into the Monroe apartment of two young female NLU students, M.K. and K.H. At about 4:30 a.m., the roommates, who had retired to their bedroom, and a female guest, M.C., who was sleeping on the living room sofa, heard a knock at their front door and the voice of a man claiming to be a security guard. M.K. left the bedroom and entered the living room in response to the knock. M.C. approached the front door to investigate. As she did so, the door was suddenly forced open by a man subsequently identified as the defendant, and M.C. was thrown backwards against the wall.
The defendant entered the apartment and grabbed M.C. by the hair. He told M.K. to come to him or he would blow M.C.'s head off. When M.K. complied with his demand, he forced her to her knees and grabbed her by the hair also.
K.H. had initially remained in the bedroom but entered the living room to investigate the commotion. She saw the defendant point a dark object the size of a handgun at M.C.'s head. He ordered K.H. to the floor with the other girls, threatening to shoot M.C. if she failed to comply. At this point, M.C. saw a shiny object in the defendant's hand and what appeared to be the strap of a pistol holster. The defendant intertwined the hair of the three girls and dragged them on their knees into the bedroom.
In the bedroom, the girls were tied up with items of clothing taken from a laundry basket. The defendant also placed pillowcases over their heads. He then raped M.C. Next he attempted to rape M.K., but, due to her resistance, he decided to move on to the next victim. He raped K.H. twice and forced her to perform oral sex on him twice. The defendant consistently threatened to "blow their heads off" if any of the victims screamed or tried to look at him.
Between the sexual assaults, the defendant ransacked the bedroom, looking for money and other valuable items. He robbed each of the girls of her personal jewelry, including one girl's engagement and wedding rings.
Eventually, the defendant left the bedroom, shutting the door behind him. M.K. was able to free herself, and she untied the other victims. The defendant then tried to reenter the bedroom. However, the girls slammed the door shut and repelled the defendant's efforts to force the door open again. The girls also began screaming loudly for help and pounding on the walls to wake up their neighbors. The defendant fled the apartment, taking several items including the victims' purses, jewelry, M.C.'s bank automatic teller machine (ATM) card, and M.K.'s moon-faced watch.
Later that day, an attempt was made to use M.C.'s bank card at the ATM machine on the NLU campus. Through bank records, the police contacted the bank customer who used the automatic teller immediately thereafter. This customer described the person who tried to use the ATM machine before him as a black male, about 5'11" or taller, with a stocky build. The customer specifically recalled that the man wore a Mexican sombrero hat, flowery-looking Hawaiian shorts, and sunglasses.
The victims were able to give the police a general description of the assailant. On April 24, 1990, a police artist drew a composite of the rapist based on information provided by M.C. and M.K. A poster of the composite was distributed to local law enforcement agencies. The director of police on the NLU campus saw the poster and recognized the defendant, who had formerly been a student worker for the campus police. He contacted the Ouachita Parish Sheriff's office, which was in charge of the investigation, and supplied them with the defendant's name.
On April 25, 1990, Deputies Gary Carver and Connie Miller showed the girls photo lineups containing the defendant's photo. All three victims identified the defendant as the rapist.
The deputies learned that the defendant and his girl friend were being evicted from an apartment in the same complex where the rapes occurred. Consequently, they obtained a search warrant for the defendant's old apartment, as well as the new apartment into which he was moving. A search of the defendant's new apartment led to the recovery of clothes matching those worn by the man who used M.C.'s bank card, i.e., the sombrero, two pairs of Hawaiian-looking shorts, and a pair of sunglasses. (When Deputy Miller showed these items to the customer who observed the man at the ATM machine, he positively identified the sombrero and the sunglasses, and he said that the shorts were similar to those which the man was wearing.) The authorities also recovered M.K.'s moon-faced watch, which was taken from the victims' apartment by the rapist.
The defendant was arrested on April 25, 1990. Two of the three victims picked the defendant out of a live lineup later that night.
The defendant was charged with two counts of aggravated rape, one count of attempted aggravated rape, and three counts of first degree robbery. (He was also charged separately with one count of aggravated oral sexual battery against K.H.)
At trial, all three victims positively identified the defendant as their assailant. The defendant testified in his own behalf. He also presented the testimony of his girl friend, Shondra Skipper, who testified somewhat equivocally as to his presence at home at the time the rapes occurred.
The defendant was convicted of all six charges. On each of the two charges of aggravated rape, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On the charge of attempted aggravated rape, he was sentenced to 50 years at hard labor. On each of the three counts of first degree robbery, the defendant was sentenced to 25 years at hard labor without benefit of parole, probation or suspension of sentence. The court directed that the sentences for the crimes against each of the three victims were to run concurrently with each other, but consecutively to the sentences for the offenses against the other victims.
The defendant appealed. He initially filed three assignments of error, but he failed to brief one of them. Consequently, it is deemed abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App.2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990). The two remaining assignments of error are as follows: (1) the trial court erred in admitting the photographic lineup into evidence because it was overly suggestive; and (2) the evidence presented at trial was insufficient to support the defendant's convictions.
The defendant contends that the lineups were unduly suggestive. Although he refers to both the physical and the photo lineups in his brief, at trial the defendant objected only to the evidence of the photo lineups. (Also, in his assignments of error filed in the trial court, the defendant complains only of the photo lineups.) A new basis for an objection cannot be raised for the first time on appeal. State v. Cressy, 440 So.2d 141 (La.1983); State v. O'Neal, 501 So.2d 920, 924 (La.App.2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987); LSA-C.Cr.P. Art. 841. Therefore, the only issue before us is whether the pre-trial identifications at the photo lineups were overly suggestive.
A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there is a likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Cotton, 511 So.2d 1207 (La.App.2d Cir.1987); State v. McGraw, 564 So.2d 727 (La.App.2d Cir.1990), writ denied, 567 So.2d 1126 (La.1990). A lineup is unduly suggestive if the procedure focuses attention on the defendant. State v. Tucker, 591 So.2d 1208 (La.App.2d Cir.1991), writ denied, 594 So.2d 1317 (La.1992); State v. Cotton, supra. Even if the court finds that the procedure used was suggestive, an identification will be admitted if, under the totality of the circumstances, the identification is found to be reliable. State v. McGraw, supra; State v. Mims, 501 So.2d 962 (La.App.2d Cir.1987).
Our review of the evidence reveals that the photo lineups were not conducted in a suggestive manner. On the day of the rapes, the victims were shown a photo lineup from which none of them made any identification; the defendant's photo was not in that lineup. Subsequently, M.K. and K.H. were both shown another photo lineup, which included the defendant's photo. These two girls were shown the lineup separately, and both identified the defendant. M.C. was shown a different lineup; the officers had changed the defendant's position in the lineup just in case there had been any communication with the other victims. M.C. also identified the defendant. The officers who presented the lineups to the victims in no way suggested which, if any, photograph they should select. Furthermore, the men in the photographs were sufficiently similar in their general appearance to reasonably test the identification.
Even if we were to assume arguendo that the identification procedure was suggestive, the identification will not be suppressed unless a...
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