95-1665 La.App. 3 Cir. 10/11/96, State v. Armstrong

• Decision Date: 11 October 1996
• Citation: 683 So.2d 1261
• Parties: 95-1665 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1261

683 So.2d 1261

95-1665 La.App. 3 Cir. 10/11/96

STATE of Louisiana, Plaintiff-Appellee v. Anthony ARMSTRONG, Defendant-Appellant.

No. CR95-1665.

Court of Appeal of Louisiana Third Circuit.

Oct. 11, 1996.

Rehearing Denied Jan. 27, 1997.

Jerold Edward Knoll, Michael Francis Kelly, Marksville, for State of La.

Dan B. McKay, Jr., for Anthony Armstrong.

Before DOUCET, C.J., and THIBODEAUX and DECUIR, JJ.

[95-1665 La.App. 3 Cir. 1] DECUIR, Judge.

Anthony Armstrong was charged by a bill of information with armed robbery. He and a co-defendant, Cedric Johnson, entered pleas of not guilty. Before trial, Johnson changed his plea to guilty. He was sentenced to serve five (5) years of imprisonment. At a preliminary examination requested by the present defendant, Johnson stated Armstrong was not the co-perpetrator. Johnson was subsequently charged with perjury; he entered a plea of not guilty prior to Armstrong's trial. The current defendant filed a motion to quash, claiming the perjury charge against Johnson (his potential chief witness) was improper. After a hearing, the district court denied the motion. Armstrong also filed a motion to suppress evidence, seeking to prevent the state from using an out-of-court identification at trial. This motion was granted.

After being convicted on the armed robbery charge, defendant was billed as an habitual offender and sentenced to ninety-nine (99) years at hard labor. His motion [95-1665 La.App. 3 Cir. 2] to reconsider sentence was denied. Armstrong now appeals his conviction and sentence, citing fourteen (14) assignments of error.

FACTS:

At approximately 11:15 p.m. on January 3, 1995, two men wearing bandannas around the lower halves of their faces entered Mike's Super Mart in Bunkie, Louisiana. One man brandished a handgun and gave orders to the clerks; the second man produced a paper bag in which he stuffed approximately $400.00 from the cash drawer. At trial, the two clerks both identified the defendant as the gunman.

ASSIGNMENT OF ERROR NO. 9:

By this assignment, defendant contends the evidence adduced at trial was insufficient to have supported his conviction. The Louisiana Supreme Court held in State v. Hearold, 603 So.2d 731, 734 (La.1992):

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. [95-1665 La.App. 3 Cir. 3] Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

We accordingly proceed first to determine whether the entirety of the evidence, both admissible and inadmissible, was sufficient to support the conviction.

Armstrong's appellate argument centers on evidence he claims was improperly admitted, but pursuant to Hearold this is not the proper subject of a Jackson review.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, the appellate court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, supra, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the state to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt.

La.R.S. 14:64(A), "Armed Robbery," states:

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Two (2) eyewitnesses identified Armstrong as the gunman in the robbery. These witnesses, who were the clerks on duty when the crime occurred, thus satisfied [95-1665 La.App. 3 Cir. 4] the act and identity elements of the crime. Witness Chris Machen's testimony also referred to the defendant's verbal instructions during the robbery, which made clear that Armstrong had the requisite intent.

As the evidence adduced at trial was sufficient under Jackson and Hearold, this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 1 AND 2:

The defendant complains the district court erred in failing to suppress the eyewitnesses' in-court identifications of him as the gunman. Also, he contends the lower court erred by finding he "opened the door" at trial to the otherwise inadmissible out-of-court identifications.

Before trial, the district court suppressed the eyewitnesses' identification of Armstrong at the Bunkie police station. In the court's view, the witnesses' one-on-one identifications of the defendant were made in unduly suggestive circumstances. However, eyewitnesses Ponthier and Machen were allowed to make in-court identifications of Armstrong as the gunman. Armstrong argues the improper out-of-court identifications "tainted" the identifications at trial.

... For the identification to be inadmissible due to an allegedly suggestive identification procedure, there must be a substantial likelihood of misidentification in addition to the suggestive identification procedure. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); [State v.] Rosette, [94-1075 (La.App. 3 Cir. 3/22/95) ]; 653 So.2d 80. Thus, an appellate court must determine from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification.

In determining whether there was a substantial likelihood of misidentification, we consider the factors as delineated by the United States Supreme Court in Neil v. Biggers: (1) the witness' opportunity to view the criminal when the crime was committed; (2) the degree of attention by the witness; (3) the accuracy of the prior description of the criminal given by the witness; (4) the level of certainty evidenced by the witness at the confrontation; and (5) the amount of time between the offense and the confrontation. Furthermore, this court has held that "[a]gainst these factors is to be weighted the corrupting effect of the [95-1665 La.App. 3 Cir. 5] suggestive identification itself". Rosette, 94-1075 at pp. 4-5, 653 So.2d at 82.

State v. Johnson, 95-711 (La.App. 3 Cir. 12/6/95); 664 So.2d 766. See also: State v. Davis, 95-801 (La.App. 3 Cir. 2/6/95); 664 So.2d 821.

As to the first two Biggers factors, the store clerks testified the market was well-lit, and their attention was focused on the gunman. The lower half of his face was hidden, but they could see his eyes, the bridge of his nose, his forehead, and his hair. Louisiana courts have previously upheld identifications of defendants whose faces were covered or partially covered. See, e.g., State v. Nicholas, 397 So.2d 1308 (La.1981); also State v. Courville, 536 So.2d 661 (La.App.1988). The third Biggers factor, accuracy of the witnesses' prior description, cannot be assessed, as little information on the matter appears in the record. Fourth, both Ponthier and Machen were certain of their identifications. The final Biggers factor is the time between the offense and the confrontation. The (initially) suppressed out-of-court identification was made within a day of the offense. The in-court identifications were made on May 17, 1995--approximately four months after the robbery.

Analyzing the reliability of the in-court identifications under the totality of the circumstances, this court finds them to be reliable. Both eyewitnesses testified their attention was fixed upon the gunman throughout the hold-up. The clerks' fixed attention on the gunman presents a basis for the in-court identification, independent of the improper line-up. Additionally, it is noteworthy that at the first line-up, the two store clerks did not mis-identify any of the four suspects as the gunman. The two clerks had a full opportunity to view the defendant in a well-lit store.

The defendant also complains that the line-ups, having been ruled inadmissible before trial, were discussed in testimony before the...