State v. Hallal

Decision Date24 May 1989
Docket NumberNo. CR88-982,CR88-982
Citation544 So.2d 1222
PartiesSTATE of Louisiana v. Robert Michael HALLAL.
CourtCourt of Appeal of Louisiana — District of US

William E. Tilley, Dist. Atty., Leesville, for defendant-appellant.

Tony C. Tillman, Leesville, for plaintiff-appellee.

Before GUIDRY, DOUCET and LABORDE, JJ.

GUIDRY, Judge.

On April 4, 1988, appellant, Robert Hallal, was charged by bill of information with two counts of armed robbery, a violation of La.R.S. 14:64. On May 13, 1988, a twelve person jury found appellant guilty as charged on both counts. Hallal was subsequently sentenced to concurrent prison terms of thirty years without benefit of probation, parole or suspension of sentence. Appellant now seeks review of his convictions and sentences based on nineteen assignments of error. Assignment number two has not been briefed and is considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

FACTS

During the afternoon of September 6, 1987, two persons dressed in military camouflaged clothing entered the Phoenix Drug Store in Leesville, Louisiana, and stood by the candy display until all customers had exited the business. At that time, one of the pair produced a sawed off shotgun and ordered the pharmacist, Don Goins, to the rear of the store where the pharmacy was located. The robber, who had a mustache and wore mirrored sunglasses, produced a plastic bag. Speaking in what Goins described as a "distinctive" voice, he instructed the pharmacist to fill the bag with Dilaudid and all other of the pharmacy's "Class A's". In the meantime, his cohort forced the cashier to surrender the currency in the cash register. After ordering the cashier to the rear of the store and the pharmacist into a storeroom, the pair fled. The police, with the help of Goins and his employee, later prepared composite sketches of the perpetrators of the crime.

On the morning of February 6, 1988, Goins was again working at the drug store with two other employees. A white male and a black male entered soon after the store opened. The black male produced a small silver handgun and ordered the two cashiers to surrender the money in the cash register. The white male proceeded to the pharmacy, grabbed Goins by the arm and pointed a sawed off shotgun at him. The assailant ordered Goins to the floor, gave him a plastic bag and asked for "Class A's", Dilaudid, Valium and cocaine. According to Goins, he recognized his assailant as the perpetrator of the earlier robbery by his distinctive voice, the expressions used, and because the gun used was identical. When this suspect diverted his attention to communicate with his cohort who was escorting the two cashiers toward the rear of the store, Goins escaped through a back door. The pair immediately fled through the entrance of the pharmacy.

Upon exiting onto the roadway behind the pharmacy, Goins encountered two Vernon Parish deputies. The officers had driven to the location because Calvin Wilson, an off-duty deputy, had earlier observed a white Chrysler automobile whose occupants were paying undue attention to the pharmacy, driving by, glancing and pointing in its direction. The investigating officers observed a white Chrysler automobile parked in front of the pharmacy. Other local law enforcement officers were dispatched to the general area. Officers investigating the incident requested a description of the suspects and were repeatedly informed by Goins that it was the same individual responsible for the earlier robbery. A Leesville police officer, Frank Rock, encountered an individual later identified as appellant, Robert Hallal, running from a bank parking lot. Hallal informed the officer two suspects were running in a northwesterly direction. Appellant then walked across the street and began conversing with a pedestrian.

About this time, Officer Tommy Landrum, who had joined in the search, was waved down by a motorist who informed him the suspects had separated and were running in different directions. Appellant was leaving the area as Calvin Wilson, who was cruising the area with a Vernon Parish deputy, recognized Hallal and informed Deputy Willis that appellant was the individual that he had observed earlier in the white Chrysler automobile. Upon returning to the area, Officer Rock witnessed appellant fleeing across railroad tracks. Appellant was later located in a nearby home and arrested along with a black male suspect.

After being transported to the Leesville police station and advised of his rights, appellant admitted his role in the robbery and informed officers that the black suspect in custody was not the individual who participated in the crime.

Officers searching the general vicinity around the pharmacy for evidence discovered a sawed off shotgun in an alley behind the PG-13 Club. A jacket with two shotgun shells in the pocket, and a cap and gloves were located in a drain at the side of a nearby building. Two days subsequent to the robbery, Goins positively identified appellant in a photographic line-up.

ASSIGNMENTS OF ERROR NOS. 1 AND 8

By these assigned errors, appellant contends the trial judge erred in denying a defense motion to suppress the pre-trial photographic identification of appellant by Goins. Appellant asserts the proceedure employed was unduly suggestive and that the photographic identification tainted the witness' in court identification which had an inadequate independent basis. Lastly, appellant argues that the trial court's ruling permitting introduction of the photographic line-up constitutes reversible error.

The defendant seeking to suppress a photographic identification has the burden of proving suggestiveness and the likelihood of misidentification. State v. Chaney, 423 So.2d 1092 (La.1982); State v. Cotton, 511 So.2d 1207 (La.App. 2d Cir.1987). Although there exists no particular criteria for a photographic lineup, it will be deemed unduly suggestive if the identification procedure displays the defendant so singularly that the witness' attention is focused on defendant. The likelihood of misidentification must be established and weighed against the suggestive identification in light of the following factors:

(1) the witness' opportunity to view the criminal at the time of the crime;

(2) the witness' degree of attention;

(3) the accuracy of a prior description;

(4) the level of certainty exhibited at the identification; and

(5) the time between the crime and the identification.

State v. Savoy, 501 So.2d 819 (La.App. 4th Cir.1986), writ denied, 502 So.2d 576 (La.1987). In those cases where a pretrial identification is impermissibly suggestive, an in court identification is admissible when it has an independent basis. State v. Winn, 412 So.2d 1337 (La.1982).

At the hearing on the motion to suppress, a police officer testified that no suggestions were made about which photograph depicted the individual suspected of committing the crime. This testimony was reiterated at trial by the officer as well as the victim. The six photographs presented to the victim in a folder were police department "mug shots". Five of the pictures depicted the subject from the chest up. The picture of appellant depicted him from the shoulders upward.

Although the picture of appellant is unique in depicting him from the shoulders up, there is sufficient resemblance of physical characteristics and features of the persons depicted in the other pictures to reasonably test the reliability of the identification. Each is a mustached, white male, approximately the same age. See State v. Robinson, 386 So.2d 1374 (La.1980) (yellow tint on defendant's photo not suggestive); State v. Sepcich, 473 So.2d 380 (La.App. 5th Cir.1985) (lighter background not suggestive); State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983), writ denied, 442 So.2d 460 (La.1983) (not suggestive where defendant clean shaven and others have some facial hair). Under the circumstances, the procedure used was not impermissibly suggestive.

Further, using the factors enunciated above, there was no substantial likelihood of misidentification. At each robbery, Goins was face to face with appellant in the interior of a well lighted store. Goins stated he had eye contact with the intruder and made approximately five sweeping glances at his face. The composite drawing prepared with Goins' help after the first robbery represents a relatively accurate depiction of appellant. Goins identified the photograph of appellant within ten seconds of exhibition of the lineup and his identification was unequivocal. Finally, the lineup occurred only two days after the second robbery. These factors support the trial court's determination that the circumstances surrounding the lineup show little likelihood of misidentification. Additionally, the in court identification has a sufficient independent basis untainted by the lineup.

Lastly, introduction of the photographs used in the lineup was relevant and admissible to show that the victim's in court identification was not tainted and to permit the jury to determine the weight to be afforded the identification. State v. Gilmore, 332 So.2d 256 (La.1976); State v. Hatch, 305 So.2d 497 (La.1974), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63 (1975).

For the reasons stated, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

By this assigned error, appellant alleges the trial court erred in denying a defense motion on the morning of trial for a continuance. Defense counsel argues that the failure of the prosecutor to timely comply with discovery by not producing police offense reports until the morning of trial resulted in an inability to discuss the information with appellant prior to trial and provided grounds for a continuance. Appellant emphasizes that only five weeks transpired between arraignment and trial, severely limiting defense counsel's ability to prepare a defense. Appellant also claims the unavailability of key alibi witnesses whose presence...

To continue reading

Request your trial
10 cases
  • State v. Garris
    • United States
    • Court of Appeal of Louisiana — District of US
    • 3 Septiembre 1992
    ...the inference is based. State v. Moten, 510 So.2d 55 (La.App. 1st Cir.1987), writ denied, 514 So.2d 126 (La.1987); State v. Hallal, 544 So.2d 1222 (La.App. 3d Cir.1989), reversed on other grounds, 557 So.2d 1388 (La.1990). The Louisiana Supreme Court has held that intoxication, with its att......
  • State v. Hicks
    • United States
    • Court of Appeal of Louisiana — District of US
    • 28 Octubre 1992
    ...the inference is based. State v. Moten, 510 So.2d 55 (La.App. 1st Cir.1987), writ denied, 514 So.2d 126 (La.1987); State v. Hallal, 544 So.2d 1222 (La.App.3d Cir.1989), reversed on other grounds, 557 So.2d 1388 An expert witness or scientific analysis is not required to identify blood under......
  • State v. Ross
    • United States
    • Court of Appeal of Louisiana — District of US
    • 29 Junio 1992
    ...decision indicates that the objectionable prospective juror was ever challenged peremptorily by the defense. See State v. Hallal, 544 So.2d 1222, 1230 (La.App. 3d Cir.1989). Apparently, the challenged juror served on the jury which convicted the defendant in Hallal. Therefore, the Supreme C......
  • State v. Hamilton
    • United States
    • Court of Appeal of Louisiana — District of US
    • 20 Noviembre 2013
    ...court did not abuse its discretion when denying the defendant's challenge for cause as to this prospective juror. In State v. Hallal, 544 So.2d 1222 (La.App. 3 Cir.1989), rev'd on other grounds,557 So.2d 1388 (La.1990), a prospective juror stated that she knew the victim as well as his fami......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT