94 1561 La.App. 1 Cir. 10/6/95, State v. Johnson

• Decision Date: 06 October 1995
• Citation: 664 So.2d 141
• Parties: 94 1561 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 141

664 So.2d 141

94 1561 La.App. 1 Cir. 10/6/95

STATE of Louisiana v. Donald Ray JOHNSON.

No. 94 KA 1561.

Court of Appeal of Louisiana First Circuit.

Oct. 6, 1995.

Rehearing Denied Nov. 15, 1995.

Writ Denied March 15, 1996.

Clayton M. Perkins, Jr., St. Francisville, for Appellant Donald Ray Johnson.

George H. Ware, Jr., Clinton, for Appellee State of Louisiana.

Before CARTER and PITCHER, JJ., and CRAIN, J. Pro Tem. ¹

[94 1561 La.App. 1 Cir. 2] PITCHER, Judge.

Donald Ray Johnson was charged by bill of information with attempted first degree murder, a violation of LSA-R.S. 14:27 and 14:30. He pled not guilty and, after trial by jury, was convicted as charged. The state filed a petition charging defendant as a fourth felony habitual offender. See LSA-R.S. 15:529.1. After a hearing, the trial court found defendant to be a third felony habitual offender and sentenced him to serve a term of sixty years imprisonment at hard labor, with credit for time served. Defendant has appealed, urging four assignments of error.

FACTS

On July 14, 1993, Johnny Beauchamp returned to his residence in Clinton, after having been out of town on business. It was shortly after noon when he entered the front door. In a rush to go to the bathroom, he immediately walked down the center hall. As Beauchamp passed the master bedroom, he noticed movement and thought it was the woman who regularly cleaned his home. As he reached the next door, an intruder came out of the master bedroom and fired a shot, which went over Beauchamp's head. According to Beauchamp, the gun was aimed in his direction when it was fired. The man then ordered Beauchamp to lie facedown on the floor. Concerned about being shot in the back, Beauchamp grabbed the man's arm in an attempt to gain control of the weapon. The man hit Beauchamp on the head with the pistol two or three times and knocked him to the floor. The man continued to hit Beauchamp on the head with the pistol. Eventually, Beauchamp was on his back, attempting to kick the intruder in the groin. When Beauchamp noticed the barrel had broken off the gun, he no longer was concerned about being shot. Beauchamp also noticed that the man's finger was cut badly during the altercation. The man left the house through the front door.

A woman who was standing on a porch across the street from Beauchamp's residence testified that she heard the shot and thought somebody was shooting at squirrels. Later, she noticed a heavyset black man running down the street. Because she did not see the [94 1561 La.App. 1 Cir. 3] man's face, she was unable to identify him. Ernest Bell was driving in the area at about 12:30 p.m. when he saw defendant going in a "fast trot." Bell had known defendant for about seventeen years. When defendant waved at him to stop, Bell stopped and gave defendant a ride to the apartment building where defendant lived. During the trip, Bell noticed that defendant's hand was bleeding and that defendant had taken off his shirt to wrap his hand. When Bell asked defendant what had happened, defendant did not reply.

When the police arrived at Beauchamp's residence, Beauchamp described the attacker as being a heavyset black male. The barrel of the pistol was found in a bedroom, and the remainder of the pistol was located in a neighbor's yard. Beauchamp normally kept the pistol in the bureau drawer next to his bed.

Beauchamp's wife returned to the house after being called about the offense. She took her husband to the hospital, where he received 59 stitches in his head and treatment for a broken hand. According to her testimony, she had left the residence at about noon, shortly before her husband returned from his trip. When she returned to her house, she found that the door to her jewelry box had been opened and two necklaces were misplaced in the box. She also noticed that her house was a mess and the door on a chifforobe was broken.

During the trial, Mr. Beauchamp identified defendant as being the intruder. Mr. Beauchamp also testified that after he received stitches, he went to the jail to find out the name of the intruder. While at the jail, he saw defendant and recognized him as being the intruder. He also indicated that he saw defendant standing outside the courthouse on a later date when defendant had been brought to the courthouse for arraignment.

INSUFFICIENT EVIDENCE

In the first assignment of error, defendant asserts the evidence was insufficient and the court erred when it denied his motion for post verdict judgment of acquittal. On appeal, defendant includes only a brief general argument on this [94 1561 La.App. 1 Cir. 4] assignment. However, it is apparent from the trial transcript that the defense was mistaken identity.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the state proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). Where the key issue raised by the defense is the defendant's identification as the perpetrator, rather than whether or not the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984). The testimony of a victim is sufficient to establish the elements of an offense. State v. Creel, 540 So.2d 511, 514 (La.App. 1st Cir.), writ denied, 546 So.2d 169 (La.1989).

After reviewing the trial testimony and evidence, we conclude defendant's identification as the perpetrator was established beyond a reasonable doubt. Mr. Beauchamp identified defendant in court and said he was "sure" of the identification. Although Beauchamp did not know defendant before the offense and saw his assailant for only two or three minutes during the attack, he looked directly at the assailant's face when he made the decision not to lie down as instructed; and he watched the man's face carefully because of the gun. After the offense, Beauchamp told the officers at the scene that he would be able to identify the heavyset black male who had attacked him. Once he secured medical treatment, Beauchamp went to the jail to check on the status of the case and find out the name of his attacker. While Beauchamp was there, he happened to see defendant through a window sitting in an office; and he remarked to some officers that he had noticed his attacker. Beauchamp testified that he also recognized defendant when he saw him on a third occasion. When Beauchamp came to the courthouse to get some forms, he saw defendant standing outside the [94 1561 La.App. 1 Cir. 5] courthouse with five or six other prisoners. According to Beauchamp, defendant had been brought to the courthouse that date for arraignment.

Beauchamp's identification of defendant was corroborated by the testimony of Ernest Bell and Jesse Flowers and by the physical evidence. The victim testified that, during the offense, his attacker's finger was cut. Bell testified that when he picked up defendant near the victim's house and gave him a ride, one of defendant's hands was bloody, and defendant did not reply when Bell asked him what had happened. When defendant was arrested, he had a fresh cut on his right index finger which started bleeding. Flowers lived downstairs from defendant in the same apartment building. Flowers testified that he had known defendant for about twenty years and had seen defendant wearing a cap like one found by the police in Flowers' storage room on the afternoon of the offense. Defendant lived with his aunt, who identified shorts found in the storage room as being the shorts defendant wore that morning. After being accepted as an expert in the field of forensic serology, the scientist who tested the clothing testified that the type of blood found on the clothing was consistent with the victim's blood type and was not defendant's blood type.

To rebut the state's case, defendant introduced alibi evidence that he was at home when the offense occurred. Defendant testified that other than leaving his apartment to visit his sister for about forty-five minutes, he was at home that day and was taking a nap at the time of the offense. His sister testified that defendant visited her from about 10:00 a.m. until 10:45 a.m. Defendant's aunt testified that defendant returned to the apartment at about 10:30 or 10:45 a.m. and took a nap after showering. However, the aunt said defendant could have made it to the victim's house and back in twenty minutes, and she admitted she was not sure exactly when defendant returned to the apartment. Also, defendant's own testimony was impeached with his record of criminal convictions. It is well-settled that the trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. [94 1561 La.App. 1 Cir. 6] Richardson, 459 So.2d at 38. Despite the alibi evidence, the state negated any reasonable probability of misidentification and the jury's decision to convict was rational. The assignment of error lacks merit.

DENIAL OF MOTION TO SUPPRESS IDENTIFICATION

In the next two assignments of error, defendant argues the victim's in-court identification of defendant as the attacker was the result of suggestive pretrial identifications. He specifically asserts, in the second assignment, that the court erred when it denied the motion to suppress identification and, in the third assignment, that the court erred when it denied the motion for mistrial.

Mr. Beauchamp testified that, in addition to viewing defendant during the offense, he saw defendant on two other occasions prior to the trial. About two or three hours after the incident (and after he had received medical treatment), Beauchamp went to the jail to find out the name of the attacker. Wh...