State v. Shepherd

• Decision Date: 22 August 1990
• Docket Number: No. 21684-KA,21684-KA
• Citation: 566 So.2d 1127
• Parties: STATE of Louisiana, Appellee, v. Ricky Dean SHEPHERD, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1127

566 So.2d 1127

STATE of Louisiana, Appellee, v. Ricky Dean SHEPHERD, Appellant.

No. 21684-KA.

Court of Appeal of Louisiana Second Circuit.

Aug. 22, 1990.

Smith & Hingle by J. Randolph Smith, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, James A. Norris, Jr., Dist. Atty., John P. Spires, Asst. Dist. Atty., Monroe, for appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Accused in a three-count bill of information with simple robbery, simple kidnapping, and aggravated sexual battery, Ricky Dean Shepherd (defendant) was found guilty as charged following trial before a six member jury. ¹ After a presentence investigation, and being adjudged a second felony offender on the basis of the sexual battery offense and a 1977 forcible rape conviction, he was ordered to serve maximum allowable hard labor sentences of seven years for simple robbery, five years for simple kidnapping, and thirty years for aggravated sexual battery, all such terms to run consecutively. ² In accordance with LSA-R.S. 15:571.3C, the thirty year sentence must be served without benefit of diminution through "good time." ³

This appeal, involving nine assignments of error, ensued. Finding those without merit, we affirm.

FACTS

At about 8:00 p.m. on March 13, 1989, J.M.B., a thirty-one-year-old female, walked to her car parked in front of a dance studio in West Monroe, Louisiana. While unlocking the vehicle door, she was accosted by defendant, who proceeded to drag her across the parking lot and into an alley. In the course of that struggle, she suffered a broken right elbow, as well as numerous cuts, bruises, and scrapes. The assailant next ripped off most of her clothing, leaving her clad in only a bra.

To avoid being raped, J.M.B. falsely informed defendant that she suffered from AIDS. Nevertheless, he forced her to submit to a series of peculiar sexual acts, the lurid details of which need not be recited inasmuch as the defense concedes that aggravated sexual battery occurred. In response to a demand for money, the victim indicated that she had dropped her money and checks when assaulted at her car. Defendant then departed the alley in the direction of the vehicle, taking some of her garments with him. Shortly after the episode, her purse was discovered missing from the auto.

DISCUSSION

Assignments of Error Nos. 1 and 2

These two assignments, which will be discussed together, concern defendant's contention that the evidence is insufficient to sustain his convictions. While acknowledging that three crimes were committed and that the requisite elements were proven at trial, defendant argues the evidence does not establish him as the perpetrator.

The standard of review for sufficiency of evidence is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In cases involving a defendant's claim that he was not the individual who committed the crime, the Jackson rationale requires the state to negate any reasonable possibility of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Long, 408 So.2d 1221 (La.1982). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Emerick, 499 So.2d 195 (La.App. 2d Cir.1986); State v. Garlepied 54 So.2d 1147 (La.App. 4th Cir.1984), writ denied, 462 So.2d 189 (La.1984). It is the function of the jury, and not that of the appellate court, to assess the credibility of witnesses. State v. Holland, 544 So.2d 461 (La.App. 2d Cir.1989). Where the trier of fact has made a rational credibility determination, an appellate court should not disturb it. State v. Mussall, 523 So.2d 1305 (La.1988).

Defendant asserts that various inconsistencies disclose a reasonable probability that the victim inaccurately identified him. In particular, two police officers, who were summoned to the scene of the crime, recalled J.M.B. indicating that her attacker was clean shaven. Similarly, while at the police station approximately an hour and a half after the incident, she stated she did not think her assailant had facial hair. Also, despite then estimating the individual to weigh 160 to 170 pounds, she later gave a description of between 200 and 220 to a police artist. Under cross-examination, she acknowledged possibly telling the officer at the station that her attacker was clean shaven, and 20 to 25 years of age.

The evidence reveals that at the time of his arrest, two days after the crimes, defendant had hair on his chin and a moustache. Those features apparently went unnoticed by the victim despite her testimony that she observed her attacker's face during the assault, which occurred at a location she characterized as "shadowy." Defendant's age at the time of sentencing, some seven months after the incident, was noted as 32 years.

Nevertheless, notwithstanding such errors in description, the record discloses that the state convincingly carried its burden of proving defendant to be the perpetrator. The authorities conducted four five-person lineups, two physical and two photographic. Defendant's brother, Earnest, appeared in two of those, the first physical viewing and the initial photographic display. While perceiving similarities to the individual who attacked her, J.M.B. on both occasions stated Earnest was not the assailant. With defendant in the second set of lineups, however, she identified him as the malefactor. Thus, during the process of viewing eighteen different men, including defendant's sibling, the victim twice selected defendant. At trial, she again identified him, stating that she did so without doubt. She also testified about a scar she observed on her attacker, and then pointed out, in a photo, a similar disfigurement on defendant's right arm.

The record thus establishes that J.M.B. forcefully and repeatedly identified defendant as her attacker. Such evidence negates any reasonable possibility of misidentification and was properly accepted by the jury, even considering the victim's apparent confusion about the assailant's facial hair and exact weight.

Assignments of Error Nos. 3 and 4

In these assignments, defendant complains of ineffective assistance of counsel and contends the trial court erred in denying his motion for a new trial based on remarks by the state during closing argument. Specifically, the prosecutor made certain purportedly impermissible references to defendant's failure to testify, none of which were met by a motion for mistrial or an objection. Despite failing to lodge any objection at trial, defendant argues the comments abridged his constitutional right to remain silent to such an extent that the issue may be addressed under the federal "plain error doctrine." Alternatively, it is contended his attorney's inaction constituted ineffective assistance. [After trial, defendant retained new counsel.]

Of course, upon motion of a defendant, a mistrial shall be granted when the prosecutor refers to the defendant's failure to testify. LSA-C.Cr.P. Art. 770(3). However, the absence of a timely motion for mistrial constitutes a waiver of the defect. State v. Hookfin, 476 So.2d 481 (La.App. 1st Cir.1985); State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983). Here, defendant failed to appropriately preserve the issue for appellate review.

Regarding defendant's claim of ineffective assistance of counsel, we note that such a complaint more properly is raised in an application for post-conviction relief. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Mims, 552 So.2d 664 (La.App. 2d Cir.1989). But, if the record contains sufficient evidence pertaining to the issue, the matter may be resolved on direct appeal in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983). Mindful of the foregoing principles, a review of the present record reveals an adequate basis for evaluating defendant's complaint.

During the state's closing statement, the prosecutor remarked, "[N]ormally there are only two witnesses--the one that did it and the victim, and folks, if you're not going to believe the victim's ID what are you going to believe?" Similarly, in speaking of the victim during rebuttal argument, the assistant district attorney asserted, "[S]he's the only witness to this crime other than the defendant, and do you have any reasonable doubt to disbelieve her?" Reiterating his election to remain mute, defendant contends these statements were intended to emphasize the absence of any testimony by him.

While a direct prosecutorial reference to a defendant's failure to testify mandates a mistrial if requested, State v. Fullilove, 389 So.2d 1282 (La.1980), indirect comments command a remedy only if the remarks were intended to draw attention to a defendant not taking the stand. State v. Jackson, 454 So.2d 116 (La.1984). Applying those precepts to the case at bar, we are satisfied that the statements under scrutiny, being at most an indirect reference to defendant's failure to testify, evince no impermissible intent to highlight defendant's silence. The remarks, in the context made, disclose instead only the state's effort to bolster the credibility of the victim, particularly her identification of the assailant. The defense having attempted to emphasize certain purported inconsistencies in the victim's various descriptions of her attacker, the prosecution simply sought to counter that argument. Any allusion to defendant's choice not to testify appears incidental and prompted by no improper motivation.

We are buttressed in our conclusion by the strikingly similar case of State v. Newman, 491 So.2d...