State v. Brown

• Decision Date: 02 May 2017
• Docket Number: No. 51,352–KA,51,352–KA
• Citation: 223 So.3d 88
• Parties: STATE of Louisiana, Appellee v. Frederick Lujuan BROWN, Appellant
• Court: Court of Appeal of Louisiana — District of US

223 So.3d 88

STATE of Louisiana, Appellee

v.Frederick Lujuan BROWN, Appellant

No. 51,352–KA

Court of Appeal of Louisiana, Second Circuit.

May 2, 2017

Rehearing Denied June 15, 2017

LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant

FREDERICK LUJUAN BROWN, Pro Se

JAMES EDWARD STEWART, SR., District Attorney, TOMMY JAN JOHNSON, MEKISHA SMITH CREAL, Assistant District Attorneys, Counsel for Appellee

Before PITMAN, STONE, and COX, JJ.

COX, J.

Following a jury trial, Frederick Lujuan Brown was convicted as charged of one count of second degree robbery in violation of La. R.S. 14:64.4. Brown was sentenced to 18 years' imprisonment at hard labor. A timely motion to reconsider sentence was denied. Brown appeals his conviction and sentence. We affirm both the conviction and sentence.

FACTS

In the late afternoon of January 17, 2013, Warren Perkins was at his body shop when a black male entered the establishment and told Perkins that a friend was going to bring his wrecked truck to the shop. Perkins' employees, Bacilio Mendez and Bryant Johnson, who had not left for the day, saw the man, and one of the employees attempted to talk to him. The man followed Perkins into his office where Perkins inquired as to when the man's friend would be bringing the truck to the shop. The man then requested to use Perkins' phone. After the man appeared to make a phone call, and Mendez and Johnson had left the shop, the man lunged across Perkins' desk and began to beat him repeatedly in the head. Perkins was knocked unconscious and suffered a broken jaw, broken cheekbone and eye socket, and a concussion.¹ While disoriented and bleeding, Perkins made his way out of the shop. One of the employees who had returned to the shop found Perkins and called the police. Perkins' wallet and more than $9,000.00 cash had been removed from his pocket.

Police developed Frederick Lujuan Brown as a suspect after speaking with Perkins, Mendez, and Johnson, who had all previously seen Brown in the shop and described Brown, his clothing, and the car he drove. The witnesses also stated that Brown had a "funny made mouth." After talking to business owners located near the scene of the crime, police received a phone call from the owner of a nearby hotel who indicated that he had the driver's license of Frederick Lujuan Brown who fit the suspect's description. Brown had not paid his bill and the hotel owner held his license. Mendez, Johnson, and Perkins were able to identify Brown as the assailant from a photographic lineup shown to them shortly after the crime.

Following a jury trial, Brown was convicted as charged on August 19, 2015. The state filed a second-felony habitual offender bill of information against Brown on September 29, 2015. On November 23, 2015, Brown filed a pro se motion for post-verdict judgment of acquittal which the trial court denied.² On April 26, 2016, Brown was sentenced to 18 years at hard labor with credit for time served, to run consecutively with any other sentence.³

On May 17, 2016, Brown filed a timely pro se motion for reconsideration of sentence arguing ineffective assistance of counsel and that the trial court failed to articulate reasons for the length of the sentence imposed. Brown also urged that the trial court was not aware that he was employed at the time of the incident and that his family was dependent on his income and would undergo excessive hardship during his incarceration. Brown pointed out his voluntary participation in a pretrial drug testing program for two years and his role as a facilitator, which he argued showed that he was particularly likely to respond to probationary treatment which "may result in incidents of this nature ever to recur again." The trial court denied Brown's motion to reconsider sentence,⁴ and this appeal ensued.⁵

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Brown argues that Perkins' inconsistent testimony regarding how many times and the reason Brown allegedly came into his body shop, the conflicting descriptions of the attacker made by the witnesses, and the fact that those descriptions also described another individual who was known to drive a vehicle similar to that used by the attacker and to frequent the area where the crime occurred, is sufficient evidence to establish only that one of two men could have been the attacker. Thus, Brown argues that this evidence established one reasonable hypothesis of his innocence based upon a reasonable probability of misidentification that precluded the jury from convicting him of second degree robbery.⁶

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297.

It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Washington , 50,424 (La.App. 2 Cir. 3/16/16), 188 So.3d 350. The trier of fact hears the testimony first hand and unless the factfinder's assessment of believability is without any rational basis, it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La. 1988) ; State v. Price , 48,986 (La.App. 2 Cir. 5/15/14), 140 So.3d 1212, writ denied , 14-1274 (La. 2/6/15), 158 So.3d 814. A factual determination concerning conflicting testimony will not be disturbed on review unless it is clearly contrary to the evidence. Mussall, supra ; State v. Williams , 32,631 (La.App. 2 Cir. 12/8/99), 747 So.2d 1256, writ denied , 00-0734 (La. 11/27/00), 775 So.2d 441, and writs denied, 00–0358, 00–0360 La. 1/5/01), 778 So.2d 88. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529 ; State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So.2d 422.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Eason , 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La. 1982) ; State v. Brock , 37,487 (La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied , 04-1036 (La. 4/1/05), 897 So.2d 590 ; Williams, supra.

Face-to-face transactions taking place during daylight hours and the length of time that transpires during the altercation are factors that reduce the likelihood of misidentification. State v. Ruano , 12-1517 (La.App. 4 Cir. 7/31/13), 120 So.3d 908, writ denied , 13-2068 (La. 3/14/14), 134 So.3d 1193 ; State v. Payne , 04-828 (La.App. 5 Cir. 12/14/04), 892 So.2d 51.

Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Davis, 27,961 (La.App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La. 10/31/97), 703 So.2d 12 ; State v. Miller, 561 So.2d 892 (La. App. 2 Cir. 1990), writ denied, 566 So.2d 983 (La. 1990).

Even assuming an out-of-court identification was tainted, an in-court identification does not violate defendant's due process rights if the in-court identification had a source independent of the out-of-court identification. State v. Bland , 310 So.2d 622 (La. 1975) ; State v. Newman , 283 So.2d 756 (La. 1973), cert. denied , 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). A determination of whether the witness's in-court identification is based upon an independent source involves these factors: (1) the prior acquaintance of the witness with the accused; (2) length of time the witness observed the perpetrator before, during, and after commission of the offense; (3) the circumstances under which the observation was made, including illumination at the scene and physical capacities and emotional state of the witness at the time of observation. Bland, supra.

The crime of second degree robbery is set forth in La. R.S. 14:64.4 as follows:

A. (1) Second degree 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 when the offender intentionally inflicts serious bodily injury.

(2) For purposes of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

Thus, to convict defendant of second degree robbery, it is necessary for the state to prove: (1) the taking of (2) anything of value (3) belonging to another from the person of another or that is in the immediate control of another (4) when the offender intentionally inflicts serious bodily injury. State v. Wiggins , 44,616 (La.App. 2 Cir. 9/23/09), 22 So.3d 1039, writ denied , 09-2329 (La. 4/23/10), 34 So.3d 271.

At the trial of this matter, Warren C. Perkins, the 71–year-old victim, testified that he was self-employed at his body shop in...