State v. Atkins , No. 46,613–KA.

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: DREW
• Citation: 74 So.3d 238
• Decision Date: 21 September 2011
• Docket Number: No. 46,613–KA.
• Parties: STATE of Louisiana, Appellee v. Justin Terrell ATKINS, Appellant.

74 So.3d 238

STATE of Louisiana, Appellee
v.
Justin Terrell ATKINS, Appellant.

No. 46,613–KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 21, 2011.

[74 So.3d 238]

Louisiana Appellate Project, by Carey J. Ellis, III, Justin Terrell Atkins, for Appellant.

Jerry L. Jones, District Attorney, Robert Nicolas Anderson, John T. Pham, Assistant District Attorneys, for Appellee.

Before PEATROSS, DREW and MOORE, JJ.

[74 So.3d 239]

DREW, J.

[2 Cir. 1] Justin Terrell Atkins was unanimously convicted at jury trial of the crimes of armed robbery, La. R.S. 14:64 ¹ and aggravated battery, La. R.S. 14:34. Both crimes were part of the same event, but involved different victims. He was sentenced to 35 years at hard labor without benefits on the armed robbery, consecutive with the maximum 10 years at hard labor on the aggravated battery.

Atkins now appeals, urging insufficiency, a tainted lineup identification, and an excessive sentence. We affirm in all respects.

FACTS

On January 2, 2009, Robert Jones, Howard Bishop, and Tom Harris were drinking together at Jones' modest residence on Jackson Street in Monroe. All three men lived in the neighborhood. Bishop and Jones had just returned to the residence after cashing Jones' VA check. Atkins knew of the transaction.

Atkins kicked in the door, barged into the home, and demanded money from Jones, who refused. Atkins began beating Jones with the butt of a firearm. Harris intervened and was also struck with the firearm. Bishop witnessed all of this, even observing Atkins take the money from Jones' pocket.

[2 Cir. 2] Lurking at the door during the robbery was a man named Lawrence Horton, ² known in the neighborhood only as “O.” Horton had been living with Harris for a few months. That morning, however, Harris ordered him to leave. ³ Harris had known Horton for about a year.

A few days after the robbery, Harris later found some correspondence at the residence which bore O's real name: Lawrence Horton.

Eight days after the robbery, Horton sent word that he wanted to speak with the police. When Detective Jeffrey Dowdy questioned him, Horton admitted his part in the robbery. He blamed mainly Atkins for this crime.

After an arrest warrant was secured, Atkins was arrested.

Harris later obtained a photo of the robber, whom he identified as “J. Money.” ⁴ Harris gave the photo to the detective, claiming that it depicted the person who beat him, and who had beaten and robbed Jones.

Atkins was convicted and sentenced as outlined above.

ISSUES Sufficiency

Our law on appellate review for

[74 So.3d 240]

sufficiency of the evidence is well settled.⁵

[2 Cir. 3] Though Bishop and Harris had been drinking at the time of the crime, they had no difficulty in identifying Atkins as the armed robber. Bishop immediately picked out Atkins in a lineup. Bishop and Harris pointed out the defendant at trial, in the presence of the jury.⁶ Positive identification by one witness is sufficient to support a conviction. State v. Weary, 03–3067 (La.4/24/06), 931 So.2d 297.

[2 Cir. 4] At the time of the robbery, the crimes of conviction bore the same elements as each still does today.⁷

Harris and Bishop each identified Atkins as the man who beat them with the butt of a firearm, and who committed the robbery. In the early investigation, codefendant Horton had implicated Atkins and himself

[74 So.3d 241]

in this brutal crime. A rational jury had ample evidence by which to justify the verdicts of guilty.

Lineup

Atkins's claim that he was misidentified is weakened by these facts:

• The robber made no attempt to hide his face;

• The robbery occurred midday;

• Harris and Bishop had ample opportunity to observe the intruders;

• Both Harris and Bishop already knew Atkins ⁸ and his accomplice;

• Bishop observed the photo lineup a few days after the crime, fingering Atkins; and

• Both men identified Atkins in open court, in full view of the jury.

[2 Cir. 5] Less than two weeks after the armed robbery and aggravated battery, Harris found and provided Det. Dowdy with a photo of Atkins.

Less than two weeks after the crime, Bishop quickly picked Atkins out of a photo lineup, which is preserved in the record. We have reviewed it, and find no suggestiveness or impropriety in its makeup. On the contrary, it is close to an ideal lineup; all participants look remarkably similar.

Our law on appellate review of a motion to suppress an identification is well settled.⁹

The lineup was fair and reasonable. The jury was able to assess the witnesses in their respective identifications of Atkins at trial. Perhaps most [2 Cir. 6] importantly, Harris, Bishop, and Atkins all ran in the same

[74 So.3d 242]

neighborhood. They were already familiar with one another, even if only by nicknames.

This assignment of error is meritless.

Excessiveness

Our law on the appellate review of sentences for excessiveness is well settled.¹⁰

These unprovoked and violent crimes are inexcusable. We find this slightly less than midrange sentence to be more than reasonable. The sentence certainly does not shock the conscience.

With several felony convictions, Atkins has never responded to supervision. He is becoming more violent, and he viciously preyed upon some neighborhood men.

We have reviewed the presentence investigation report and find nothing to indicate that more leniency is required here. The sentencing judge did a thorough job in explaining his reasons for this sentence. There is no error.

[2 Cir. 7] DECREE

The conviction and sentence are AFFIRMED.

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Notes:

^1. Atkins was not billed under the sentencing enhancement statute, La. R.S. 14:64.3, which would have added five years to the minimum and maximum terms for the armed robbery conviction, raising his exposure for that offense to 15–104 years at hard labor, without benefits. He faced, and received, a maximum of 10 years at hard labor on the aggravated battery conviction, consecutive to the other prison sentence.

^2. “O” had followed Jones and Bishop to the store late that same morning. There he had observed Jones cash his check at the “Cracker Barrel.”

^3. Horton had paid very little rent during the months he lived with Harris. The last straw was when Harris was informed that Horton had thrown a party at the home of Harris, while Harris was in Baton Rouge working. Harris ordered Horton out, and Horton left, a couple of hours before the robbery.

^4. This was the nickname of the defendant, Justin Terrell Atkins.

^5. The standard of appellate review for a sufficiency of the evidence claim 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 (...