State Of La. v. Buchanan

• Decision Date: 05 May 2010
• Docket Number: No. 09-1288.,09-1288.
• Citation: 36 So.3d 1076
• Parties: STATE of Louisianav.Moses BUCHANAN.
• Court: Court of Appeal of Louisiana — District of US

36 So.3d 1076

STATE of Louisianav.Moses BUCHANAN.

No. 09-1288.

Court of Appeal of Louisiana Third Circuit.

May 5, 2010.

COPYRIGHT MATERIAL OMITTED

Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Moses Buchanan.

Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.

Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.

GREMILLION, Judge.

Following a jury trial, Defendant, Moses Buchanan, was convicted of armed robbery, a violation of La. R.S. 14:64. He was sentenced to serve forty years at hard labor. Defendant is now before this court on appeal, challenging both his conviction and sentence. We affirm.

FACTS

On the evening of August 26, 2006, a man entered Kiki's Drive-Thru Daiquiri Shop in Opelousas, Louisiana, holding his crotch, and requesting to use the restroom. Wanda Robin was working behind the bar and her son, Ryan Robin, her niece, Lindsey Johnson, and Justin Fontenot were sitting at the bar having drinks. The man was directed to the restroom and departed the bar soon thereafter. About fifteen to twenty minutes later, the man returned to the bar with a shotgun, pointed the gun at everyone, and yelled at them to get down. He then pointed the gun at Wanda and instructed her to open the register. After Wanda handed over the cash from the register, the robber instructed everyone not to move or they would die, and he fled the bar. Following a brief investigation, Defendant was arrested on August 29, 2006, and charged with armed robbery.

SUFFICIENCY OF THE EVIDENCE

The analysis for a claim of insufficient evidence is well settled:

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 (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 credibilities 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 Graffagnino, 436 So.2d at 563 citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Defendant was found guilty of armed robbery, which is defined in La. R.S. 14:64 as “[t]he 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.” On appeal, Defendant contends that the State did not connect him with the crime or identify him as the perpetrator beyond a reasonable doubt. Further, Defendant asserts that the State was required to negate any reasonable probability of misidentification, citing State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583 cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Lastly, Defendant also maintains that the totality of the circumstances must be considered pursuant to Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Considering same, Defendant contends that the State failed to negate the reasonable probability of misidentification. A review of the record does not support Defendant's contentions. First, three of the four eyewitnesses present during the robbery identified the perpetrator from a photo line-up. Wanda, Ryan, and Justin all identified the man in photograph number two, Defendant, to be the person who robbed the bar. At trial, all three individuals identified Defendant as the person who committed the offense. Lindsey, the remaining eyewitness, testified that she was not able to identify the robber in the photo line-up, but was certain of her identification of Defendant in open court to be the person who robbed the bar.

Defendant maintains, nonetheless, that several facts exist which led to his misidentification as the perpetrator. First, Defendant maintains that the atmosphere was very charged during the robbery, and, in turn, affected the reliability of the witnesses' identifications. Specifically, Defendant asserts that Wanda was hysterical during the robbery, that Lindsey passed out after the robbery, and that Justin was in shock.

The record reflects little doubt that the atmosphere during the robbery was highly charged. The perpetrator pointed a shotgun at everyone in the bar and threatened to harm them if they did not comply with his demands. The record indicates that Wanda was very emotional during and after the offense. According to Wanda, the perpetrator pointed the gun at her and said, “Bitch, I'm gonna kill you.” At that moment, Wanda attempted to run away, but was stopped by the robber. When her son, Ryan, urged her to give the man the money, she removed the money from the register after having difficulty opening the register and handed the money to the robber.

Ryan testified that Wanda was “hysterical.” According to Ryan, the perpetrator pointed the gun at everyone and screamed at them to get down. He then pointed the gun at Wanda, who was tending bar and instructed her to open the register. According to Ryan, Wanda panicked and tried to run away. Ryan then instructed Wanda to listen to what the man said and give him the money. After Wanda complied with his demand, the robber told everyone not to move or they would die.

Lindsey testified that when the perpetrator returned to the bar, he was holding a shotgun and cursing. He instructed them to get on the floor, and Lindsey complied. Lindsey admitted that she was frightened and stated that the man pointed the gun at her. Before the man left, he instructed them not to get up. Lindsey testified that after he left, she stayed on the floor and crawled to the bathroom to call 911. On cross-examination, Lindsey's testimony indicates that she “passed out” some time after calling 911, not during the offense.

Lastly, Justin's testimony regarding the facts surrounding the offense was similar to that of Wanda, Ryan, and Lindsey. When asked if he was frightened, Justin responded, “Not at the time because I was really just in shock, I guess, but later on after he had left, yes, later on I was.”

Although the record supports Defendant's contention that the atmosphere during the offense was highly charged, we find the likelihood of misidentification is unlikely.

[R]eliability is the linchpin in determining the admissibility of identification testimony.... The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253 (citation omitted).

Considering the Brathwaite factors, the record indicates that the three eyewitnesses, Ryan, Lindsey, and Justin, had two opportunities to view Defendant, while Wanda had one opportunity. Ryan, Lindsey, and Justin first saw Defendant when he entered the bar prior to the offense, holding his crotch and asking to use the restroom. All four witnesses saw Defendant the second time he entered the bar, about fifteen to twenty minutes later.

With regard to the witnesses' degree of attention, Defendant's behavior, holding his crotch, captured the attention of Ryan, Lindsey, and Justin when he first entered the bar. Additionally, Ryan and Justin both testified that there was a bell on the door of the bar that would ring when a patron entered the bar, drawing one's attention to the person entering the bar. When Defendant entered the bar the second time, Ryan and Justin stated that the bell rang, and they all turned to the door to see who it was. To their surprise, Defendant had returned with a shotgun and commanded the attention of Ryan, Lindsey, and Justin by pointing the gun in their direction. According to Ryan, Defendant cursed and pointed the gun at them to get their attention. Wanda was working the drive-through window when Defendant first arrived, but was soon confronted by Defendant when she returned to the register at the bar. At that time, Defendant pointed the gun at her and said, “Bitch, I'm gonna kill you.” Considering these facts, we find that the fact finder could reasonably conclude that the witnesses were paying attention to Defendant.

With regard to the accuracy of the witnesses' prior descriptions of Defendant, the record reflects that all four witnesses gave a statement to police when they arrived at the scene, each providing a description of the perpetrator. These statements, however, were not admitted into evidence, and thus, the only details in the statements discussed at trial are available on review.

At trial, Ryan recalled the description of the perpetrator he gave to officers on the night of the offense. Ryan described the perpetrator as a male, about twenty-five to thirty-five years old, five feet eight inches tall, with dark skin and shaved or closely cropped hair. Ryan also recalled that the robber wore wire-rimmed glasses. The men portrayed in the photo line-up all had dark skin, closely cropped hair, and wire-rimmed glasses. As such, the description given by Ryan prior to the photo line-up was an accurate description of Defendant.

Wanda, Ryan, and Justin were all certain about their...