State v. Frank

• Decision Date: 11 April 1977
• Docket Number: No. 58872,58872
• Citation: 344 So.2d 1039
• Parties: STATE of Louisiana v. Jimmy FRANK.
• Court: Louisiana Supreme Court

Page 1039

344 So.2d 1039

STATE of Louisiana v. Jimmy FRANK.

No. 58872.

Supreme Court of Louisiana.

April 11, 1977.

Alex L. Andrus, III, Opelousas, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

The State charged the defendant, Jimmy Frank, with the armed robbery of Linda Gail Young, a violation of LSA-R.S. 14:64. A jury found him guilty as charged. He received thirty-three years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

The defendant appeals. He relies on four assignments of error for reversal of his conviction and sentence. Assignment of Error No. 4 is considered abandoned as it was neither briefed nor argued. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

The following are the facts leading to the defendant's arrest:

One Sunday night at 8:50 p.m., Linda Gail Young and Lois Smith, employees of Kajun Kitchen, an Opelousas restaurant, observed a black male enter the establishment. He had a moustache and goatee. The man wore a dark knit cap, large sunglasses and an oversized dark striped sportcoat. He walked to the cigarette machine, into the dining room, back to the cigarette machine, and then to the telephone. Young inquired if she could help him, but he shook his head. Then he approached the counter, pulled a gun on Young, and demanded money. She gave him one twenty dollar bill, three fives, and some ones. After taking the money, he left.

The police saw the defendant six or seven blocks from the Kajun Kitchen at 9:02 p.m. They recognized him by the description given over the police radio. He was running and at the same time changing clothes. When they stopped the defendant, he wore a shirt and carried another shirt and a black and green striped sportcoat in his hand. A search of the defendant produced a blue knit cap, sunglasses, one twenty dollar bill, three fives, and nine ones. He did not have a gun. The police immediately arrested him.

ASSIGNMENT OF ERROR NO. 1

The defendant timely filed the following motion to suppress:

'The testimony of Linda Young, a state witness, be suppressed at the trial of this matter, on the grounds that her identification of the defendant at a preindictment show-up was the subject of constitutionally impermissible suggestion and abusive procedures, and that all of her future recollections relating to the identification were tainted and accordingly, inadmissible.'

Minutes after the officers arrested the defendant, they brought him to the Kajun Kitchen. Young, the victim, was unable to initially identify him. The officers then requested that she leave the room. They dressed the defendant with the knit cap, striped coat, and sunglasses found on him. When she next viewed the defendant so attired, Young hesitantly identified him as the robber.

The defendant objects to the single suspect identification and the police's dressing him in the clothes found in his possession at arrest. His counsel contends 'that this confrontation, while in police custody, was so suggestive that it effectively denied the defendant due process of law.'

During the hearing on the motion to suppress, Young picked out the clean shaven defendant as the robber while he sat among a group of black males. (The robbert wore a moustache and a goatee.) At trial, she identified the defendant as the man she chose as the robber at the previous hearing. Each time Young identified the defendant, she expressed some doubt.

To determine whether this identification procedure is impermissibly suggestive and, therefore, violative of due process, we must look to the totality of circumstances. State v. Rhodes, La., 308 So.2d 770 (1975); State v. Melton, La., 296 So.2d 280 (1974) and the cases cited therein.

The law does not favor one-on-one confrontations between the victim and a suspect. However, they are permissible when the police apprehend a suspect within a relatively short time after the crime and bring him to the scene for an on-the-spot identification. This immediate confrontation assures the reliability of the identification as the perpetrator's appearance is fresh in the witness's mind, lessens the possibility that the perpetrator will change his clothes or appearance, and insures the early release of innocent subjects. State v. Lee, La., 340 So.2d 1339 (1976); State v. Maduell, La., 326 So.2d 820 (1976); State v. Newman, La., 283 So.2d 756 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974); State v. Bland, 260 La. 153, 255 So.2d 723 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

The defendant does not point to, nor do we find, any specific instance of impermissible police suggestion.

In State v. Jackson, La., 337 So.2d 508 (1976), we affirmed an armed robbery conviction in which an on-the-scene confrontation was similar to the one at bar. Although the robber wore a scarf to hide his face, the victim caught a glimpse of his face at close range. Less than fifteen minutes after the robbery the police apprehended the defendant and immediately brought him to the scene. Both the victim and a witness identified the defendant as the robber. We stated that when a witness makes an identification voluntarily and without any impermissible police suggestion, the fact that the police holds a mask to the defendant's face after the identification is made does not ex post facto taint the identification. Similarly, we conclude that the police's dressing the defendant prior to submitting him for identification does not invalidate the identification made in this instance. The totality of the circumstances dictates this result. Moreover, police act within constitutional bounds when they attire a suspect in clothes similar to those worn by the perpetrator for the purpose of identification. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); U.S. v. Wilcox, 507 F.2d 364 (4th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975).

Thus, we find the motion to suppress properly denied.

However, assuming that the one-on-one confrontation was tainted, the in-court identification was properly admitted if it has a source independent of the out-of-court identification. In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; (3) the circumstances under which the observation was made, i.e., the illumination at the scene, the witness's physical capacities, and the witness's emotional state at the time of the observation. State v. Fortenberry, La., 307 So.2d 296 (1975); State v. Moseley, La., 284 So.2d 749 (1973); State v. Newman, supra.

The victim did not know the defendant prior to the robbery. She observed the robber enter Kajun Kitchen and walk around for several minutes before he approached her. She spoke to him, his response was a nod of the head. She had an unobstructed view of the robber at all times. When he stood at the counter, he was only 1 1/2 feet from her. She testified that although she was afraid when he pointed the gun at her, she did get a good look at him. The entire room was well lit. There is no evidence that Young suffered from impaired vision.

We are convinced that the in-court identification had a source independent of the out-of-court confrontation.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

The defendant alleges that the Assistant District Attorney commented on his failure to testify. Based on this contention, the defendant moved for a mistrial and a new trial. The trial court denied both. He assigns these rulings as error.

In his closing argument the prosecutor stated:

'. . . The next aspect of this case I think that we have to consider very seriously, is that the defendant's defense in this case is an alibi, and the judge is going to explain to you that an alibi, just like any other specie of evidence, must be proven and must be believable. Can we believe the defendant's alibi that he was at the Airline Bar at the time this allegedly took place, and that the money he had on him was to pay a bill to Audrey Williams for car repairs. Audrey Williams told you that the defendant owed him $42.90 for repairs that he had done on the defendant's car one week before. Of course, now, the defendant, as I appreciate it, has been trying to convey to you that the automobile stopped because it was popping. It wasn't running well. But Audrey Williams told you that he completely timed this car, timing gear, points and plugs, the whole thing, and that the car was running well, and that when the defendant called him on a Saturday--the robbery takes place on a Sunday--he made no complaints about his car running bad. Contrary, the car was running good. The officers proved that when they cranked the car over at the station. What does the defendant tell Audrey Williams on Saturday? 'I don't have the money to pay you now, but I'll have it Monday.' I don't have it now, but I'll have it Monday. Up until that point in the case, there was no real motive for this robbery, but now the defendant, with one of his witnesses, injects a motive. He has got to have $42.90 by Monday. I don't have it on Saturday, but I'll have it by Monday. When he's caught, he's got it. We know he doesn't have it Saturday, but when he's caught on Sunday night, he had it. Well, now what explanation does he have for that? He doesn't tell us where he gets the money with Willie Aaron--' (Emphasis supplied.) (Tr. pp. 185--6)

The defendant moved for a mistrial pursuant to Louisiana Code...