Shawn Lawan McLaurin v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00814-COA
SHAWN LAWAN MCLAURIN
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
02/08/2000
HON. TOMIE T. GREEN
HINDS COUNTY CIRCUIT COURT
J. CHRISTOPHER KLOTZ
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
ELEANOR FAYE PETERSON
CRIMINAL - FELONY
CONVICTED OF RAPE AND SENTENCED
TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 11/17/2009
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Shawn Lawan McLaurin was indicted by a Hinds County grand jury for the rape of
L.E. pursuant to Mississippi Code Annotated section 97-3-65 (Rev. 2006). He was tried and
convicted of rape by a jury in the Hinds County Circuit Court. The trial court sentenced him
to serve life in the custody of the Mississippi Department of Corrections [MDOC].
Aggrieved by his conviction and sentence, McLaurin appeals arguing that: (1) he received
ineffective assistance of counsel; (2) the trial court erred in denying McLaurin to crossexamine the victim about his alleged gunshot wound; (3) the trial court erred in overruling
McLaurin’s objection to a comment made by the prosecutor; (4) McLaurin was prejudiced
by the trial court’s failure to conduct a balancing test as to evidence regarding McLaurin’s
prior criminal acts; (5) the photographic lineup procedures were so suggestive as to
unconstitutionally taint the identification of McLaurin; and (6) cumulative error warrants
reversal. Finding no error, we affirm.
FACTS
¶2.
In 1997, L.E. knew the defendant, McLaurin, as Brian McDaniels. The two had been
friendly acquaintances for approximately three years. L.E. testified that she had met
McLaurin through a friend of McLaurin’s, who was dating L.E.’s cousin.
¶3.
L.E. testified that on January 16, 1997, she placed a call to McLaurin from her
dormitory room at Tougaloo College. The two agreed that McLaurin would pick up L.E. that
night at her dormitory. At approximately 7:30 that night, McLaurin picked up L.E. at her
dormitory in a black Mazda pickup truck with an “outlaw” sticker on its back window.
¶4.
L.E. testified that while they were out McLaurin told her that he needed to stop at his
sister’s house. The two pulled up to a white house and entered the house with a key that
McLaurin had on his person. After entering the house, the two went to the back bedroom
where they began watching television. After watching television for approximately thirty
minutes, McLaurin turned to L.E. and suggested that they have sex. She recalled seeing a
condom in McLaurin’s hand. L.E. denied McLaurin’s suggestion and requested that he take
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her back to her dormitory room. She said McLaurin then became aggressive and insisted that
they have sex. L.E. attempted to leave the bedroom, but McLaurin blocked the doorway.
McLaurin then walked out of the bedroom, and according to L.E., he returned with either a
shotgun or a rifle. He pointed the gun at her and told her to strip off her clothes. Fearful for
her life, L.E. complied with McLaurin’s demands and removed her clothing. L.E. testified
that McLaurin blindfolded her and handcuffed her to the bed, and he then raped her.
¶5.
Shortly after the rape occurred, L.E. heard a car pull up to the house. McLaurin
uncuffed L.E., told her to clothe herself, and instructed her not to say anything. The two
exited the house and got back into McLaurin’s truck. McLaurin placed the blindfold back
on L.E. and began driving around telling her he was going to kill her. A short time later,
McLaurin pulled over on a street near Touglaoo and pulled out a small handgun. He told
L.E. that he was going to be watching her, and that if she told anyone what had occurred,
he would kill her. L.E. went back to her dormitory and informed her roommate about what
occurred. L.E. was then taken to the hospital.
¶6.
Dr. George Ellis was working the emergency room when L.E. was brought to the
hospital. He testified that the examination revealed no semen and no indication of an assault.
He testified that no semen would likely have been found if the perpetrator had used a
condom, which L.E. testified McLaurin used while raping her. On cross-examination, Dr.
Ellis was asked whether his examination of L.E. revealed forcible entry. Dr. Ellis said he
could not say that the physical examination proved it. On redirect, the State asked Dr. Ellis
if there was anything about the examination that disproved L.E. was raped. Dr. Ellis said,
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“Nothing disproves it.”
¶7.
L.E. gave a statement to the police that night at the hospital and again a couple of days
later. At that time, as indicated by the record, the police, together with L.E., attempted to
find the house where the raped had occurred and to locate the individual L.E. knew as Brian
McDaniels, but they were unsuccessful.
¶8.
In June 1998, while at a nightclub with her cousin, L.E. spotted McLaurin. She
reported this to an off-duty police officer who was working security for the nightclub.
McLaurin was then arrested. A few days after the arrest, L.E. was shown a photographic
lineup; she selected McLaurin as the perpetrator.
¶9.
Velma Johnson with the Jackson Police Department testified that L.E. eventually
identified McLaurin’s mother’s house as the house where the rape had occurred.
¶10.
Norris Jernigan, the off-duty police officer who was at the nightclub when McLaurin
was arrested, testified that when he made the arrest, McLaurin told him his name was Brian
McDaniels.
¶11.
During the defense’s case-in-chief, Rechelle Williams, the mother of McLaurin’s
children, McLaurin’s sister, and McLaurin’s mother all testified that McLaurin was with
Williams on the night of the rape. They each told a similar story that McLaurin and Williams
were at his mother’s house on the night of the rape, and they left only to visit his sister.
McLaurin did not testify.
¶12.
James Chappell, a parole officer, testified for the State as a rebuttal witness. He told
the jury that Williams had contacted him and stated that McLaurin had been threatening and
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harassing her. Chappell stated that McLaurin was trying to get Williams to lie at his trial and
to state that they were together on the night of the rape.
¶13.
The jury found McLaurin guilty of rape. The trial court sentenced him to serve a term
of life in the custody of MDOC. McLaurin thereafter filed a motion for a judgment
notwithstanding the verdict, or in the alternative, for a new trial, which the trial court denied.
The supreme court allowed McLaurin to file an out-of time appeal alleging six assignments
of error.
DISCUSSION
I. Ineffective Assistance of Counsel
¶14.
McLaurin raises twenty-three allegations of ineffective assistance of counsel. Without
exhaustively listing each of McLaurin’s assertions, we summarize his allegations using his
own words: “defense counsel did little to avail himself of the evidence in the custody of the
State, . . . much less conduct an independent investigation.”
¶15.
Mississippi Rule of Appellate Procedure 22(b) states:
Issues which may be raised in post-conviction proceedings may also be raised
on direct appeal if such issues are based on facts fully apparent from the
record. Where the appellant is represented by counsel who did not represent
the appellant at trial, the failure to raise such issues on direct appeal shall
constitute a waiver barring consideration of the issues in post-conviction
proceedings.
¶16.
“Where the record is insufficient to support a claim of ineffective assistance, ‘the
appropriate conclusion is to deny relief, preserving the defendant's right to argue the same
issue through a petition for post-conviction relief.’” Wynn v. State, 964 So. 2d 1196, 1200
5
(¶9) (Miss. Ct. App. 2007) (citing Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App.
2002)).
¶17.
Several of McLaurin’s allegations are based upon facts that are not fully apparent
from the record: defense counsel failed to file a direct appeal or a motion for post-conviction
relief after accepting a retainer and asserting the defense he was going to file the appeals;
defense counsel did not review an incriminating photograph of McLaurin used at trial and
did not file a motion to exclude the photograph; defense counsel failed to sufficiently
investigate potential witnesses and relevant medical records; and defense counsel did not
submit any jury instructions. The record contains no medical records, nor does it contain any
statements by potential witnesses. Thus, we cannot address these issues on direct appeal.
Because we cannot address several of McLaurin ineffective assistance of counsel allegations
on direct appeal, we find that McLaurin’s ineffective assistance claim would be more
appropriately brought in a petition for post-conviction relief, if he chooses to do so.
Accordingly, we deny relief on this issue without prejudice.
II. Opportunity to Cross-examine
¶18.
McLaurin argues that by the trial court’s refusal to allow him to cross-examine L.E.
regarding a gunshot wound that he allegedly had on his leg at the time of rape denied him his
constitutional right to confront a witness.
“We review the trial judge’s limiting of
cross-examination under an abuse of discretion standard.” Hampton v. State, 966 So. 2d 863,
867 (¶15) (Miss. Ct. App. 2007) (citing Jefferson v. State, 818 So. 2d 1099, 1109 (¶24)
(Miss. 2002)).
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¶19.
McLaurin’s theory of the case was that this was an instance of mistaken identity, and
that on night of the rape, he was recovering from a gunshot wound to the upper thigh. Yet,
there was no mention of these wounds in the initial police reports. According to the
witnesses called on McLaurin’s behalf during the defense’s case-in-chief, McLaurin was
using crutches to walk around at the time the alleged rape occurred, could not drive his
standard-shift pickup truck, and had a wound on his upper thigh that would have been clearly
visible. McLaurin argues that when his defense counsel attempted to ask L.E. about these
wounds, the trial court prohibited his inquiry.
¶20.
We disagree. L.E. was the first witness called by the prosecution. On cross-
examination, the following exchange occurred between L.E. and defense counsel:
Q:
A:
During that night?
Q:
Well, during that time anything unusual about his person or anything
like that?
A:
No, there wasn’t.
Q:
Okay. So if he was shot in the right leg with a .38 caliber pistol and
under a doctor’s care, you would [have] know[n] that. You wouldn’t
have the opportunity to have seen that?
A:
At that time I didn’t realize anything like that, no.
Q:
¶21.
Okay. Was there anything unusual about him at that point?
Okay. Did that come up in conversation that [he] had been shot in
November of ‘96 and was finally released from the doctor’s care on 1221-96, about two weeks before the event?
The State objected to this question on the ground that there was no evidence or
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documentation entered regarding McLaurin being under a doctor’s care for a gunshot wound
during this time period. The trial court sustained the objection.
¶22.
We find that the trial court did not abuse its discretion in sustaining the objection
because there was no evidence yet submitted to show that McLaurin was under a doctor’s
care for the alleged leg injury. See Vickers v. State, 994 So. 2d 200, 221 (¶82) (Miss. Ct.
App. 2008) (upholding the trial court’s refusal to allow the defendant to question the witness
when the question assumed facts not in evidence).
¶23.
Further, Rule 611(a) of the Mississippi Rules of Evidence provides the trial court the
discretion necessary “to exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence.” Rule 611(b) of the Mississippi Rules of Evidence,
indeed, permits wide-open cross-examination. M.R.E. 611 cmt. But, the comment to the
rule also states that “under Rule 611(a) the judge may still limit cross-examination to serve
one of the purposes therein stated.” Id. One such purpose is to prevent the needless waste
of time. M.R.E. 611(a).
¶24.
Despite McLaurin’s argument to the contrary, the record clearly reveals that L.E. let
it be known to the jury that she did not notice a gunshot wound to McLaurin’s leg. This
argument is without merit.
III. Prosecutor’s Comments
¶25.
McLaurin argues that the prosecutor made improper and unconstitutional comments
on McLaurin’s failure to call a medical witness regarding his alleged gunshot wound. While
cross-examining McLaurin’s mother, the prosecutor asked several questions about who had
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treated McLaurin for his alleged gunshot wound and why the defense did not call the treating
doctor as a witness. During closing arguments, the prosecutor made another comment about
McLaurin’s failure to call his treating doctor for his gunshot wound as a witness. McLaurin
argues these comments violated his rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
¶26.
McLaurin cites to Brown v. State, 200 Miss. 881, 887, 27 So. 2d 838, 840 (1946), for
the proposition that it is generally improper for the prosecution to comment on the failure of
the defendant to call a witness equally accessible to both parties. Based on the record in this
case, however, McLaurin’s reliance on Brown is misplaced. In Ross v. State, 603 So. 2d 857,
864 (Miss. 1992), the supreme court explained the Brown rule as follows:
The concept of “equal” accessibility constitutes a crucial concept in applying
this rule. In the 1946 Brown case, this Court held that the rule barring
comment did not apply where a witness, while technically accessible to both
parties, stood more available to the complaining party. Brown, 200 Miss. at
888-89, 27 So. 2d at 841. Where a defendant fails to call a witness more
available to him and presumptively in a closer relationship with him, the
[S]tate is fully entitled to comment on the party’s failure to call the witness.
Id.
¶27.
Through his alibi witnesses, McLaurin attempted to contradict the State’s case with
testimony that McLaurin was on crutches at the time of the alleged rape due to a recent
gunshot wound to his leg; therefore, he could not have been the perpetrator. Both Williams
and Margaret, the defendant’s mother, mentioned in their testimonies that McLaurin was
under a doctor’s care for the injury. During cross-examination, the State asked Margaret who
was McLaurin’s treating physician. The witness responded that she believed it was a “Dr.
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Fisher,” but added that she was not sure.
¶28.
There is no indication anywhere in the record that the State was informed prior to trial
that McLaurin was being treated for a gunshot wound at the time of alleged incident, much
less, by whom. Pursuant to the Brown rule, the State properly queried Margaret on crossexamination on this point, and during its summation, the State appropriately argued the
logical inference taken from the defendant’s failure to produce his treating physician at trial.
This issue is without merit.
IV. Prior Bad Acts
¶29.
McLaurin argues the trial court erred by not sua sponte conducting a Mississippi Rule
of Evidence 403 balancing test on testimony regarding McLaurin’s prior bad acts. Officer
Richard Lowery, with the Jackson Police Department, testified that he had seen McLaurin’s
pickup truck with the “outlaw” sticker on its back window during his investigation of another
criminal matter. Lowery testified that, when the truck was impounded following McLaurin’s
arrest at the night club, a rifle and a handgun were found inside the vehicle. McLaurin claims
the trial court should have conducted a hearing to determine whether the probative value of
this evidence outweighed its prejudice.
¶30.
However, McLaurin’s counsel admittedly did not object to this testimony. Our
supreme court has consistently held that the failure to make a contemporaneous objection to
testimony which a defendant finds objectionable constitutes waiver of the issue on appeal.
Wells v. State, 698 So. 2d 497, 514 (Miss. 1997) (citations omitted). The reason for the rule
is to allow the trial court to correct an error with proper instructions to the jury whenever
10
possible. Morris v. State, 963 So. 2d 1170, 1177 (¶26) (Miss. Ct. App. 2007) (citing Gray
v. State, 487 So. 2d 1304, 1312 (Miss.1986)). Procedural rule notwithstanding, the law does
not require the trial court to conduct a Rule 403 balancing test sua sponte. Cf. Brown v.
State, 890 So. 2d 901, 913 (¶36) (Miss. 2004) (supreme court expressly overruled Smith v.
State, 656 So. 2d 95, 100 (Miss. 1995), which had held that the trial court was required to
issue a sua sponte 404(b) limiting instruction). The Brown court held that Mississippi Rule
of Evidence 105 clearly places the burden of requesting a Mississippi Rule of Evidence
404(b) limiting instruction upon counsel. The Brown court reasoned as follows:
“The trial court has the discretion to determine if the Rule 404(b) limiting
instruction is appropriate given the totality of the circumstances. Otherwise,
it is fundamentally unfair to place the burden on the trial judge absent an
affirmative request on behalf of a party that such an instruction be given.
Simply because the judge did not issue the instruction is not a reason for a
mistrial; accordingly, there was no error in the trial below.
Brown, 890 So. 2d at 913 (¶37).
¶31.
We read Brown’s holding as placing the onus on the parties to make a request unto
the trial court that a Rule 403 balancing test be conducted with regard to relevant evidence
which may otherwise be excluded for the reasons stated within the rule. Accordingly, this
argument is without merit.
V. Lineup
¶32.
McLaurin argues that the photographic lineup given to L.E. was “impermissibly
suggestive as to taint” the identification of McLaurin. McLaurin claims the photographic
lineup was suggestive because L.E. had seen him at the nightclub two days before the lineup
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was administered, which made the image of his face fresh in her memory during the
photographic lineup. He also claims that the photographs in the lineup were “substantially
dissimilar” from McLaurin, making McLaurin’s photograph stand out from the others.
¶33.
We cannot determine the merit of McLaurin’s claim as the photographic lineup has
not been made part of the record on this appeal. Our supreme court had stated that “we must
decide each case by the facts shown in the record, not assertions in the brief, however sincere
counsel may be in those assertions. Facts asserted to exist must and ought to be definitely
proved and placed before us by a record, certified by law; otherwise, we cannot know them.”
Mason v. State, 440 So. 2d 318, 319 (Miss. 1983). Accordingly, we cannot address this
issue as McLaurin failed to make the photographic lineup part of the record.
VI. Cumulative Error
¶34.
McLaurin argues that the trial court’s error and the prosecution’s misconduct resulted
in a cumulative error that requires reversal and a new trial.
¶35.
“This Court may reverse a conviction and sentence based upon the cumulative effect
of errors that independently would not require reversal. . . . However, where ‘there was no
reversible error in any part, there is no reversible error to the whole.’” Bright v. State, 894
So. 2d 590, 596 (¶31) (Miss. Ct. App. 2004) (quoting Coleman v. State, 697 So. 2d 777, 787
(Miss. 1997)). Since McLaurin has failed to show any individual errors, we find no
cumulative error that would necessitate reversal of his conviction. Accordingly, this issue
is without merit.
¶36.
THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
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CONVICTION OF RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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