State v. Stucke

• Decision Date: 07 September 1982
• Docket Number: No. 81-KA-3088,81-KA-3088
• Citation: 419 So.2d 939
• Parties: STATE of Louisiana v. Bruce F. STUCKE.
• Court: Louisiana Supreme Court

Page 939

419 So.2d 939

STATE of Louisiana v. Bruce F. STUCKE.

No. 81-KA-3088.

Supreme Court of Louisiana.

Sept. 7, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Arthur J. Lentini, Asst. Dist. Attys., for plaintiff-appellee.

Lawrence Blake Jones, Scheuermann & Jones, New Orleans, for defendant-appellant.

WILLIAM NORRIS, III, Justice Ad Hoc. ^*

Defendant was charged by bill of information with attempted first degree murder in violation of La.R.S. 14:27 and 14:30 respectively. After trial by jury, he was found guilty of aggravated battery and sentenced to serve ten years at hard labor. It is from this conviction and sentence that defendant appeals urging twelve assignments of error.

FACTS

On November 20, 1980, at approximately 12:15 a. m. Deputy Charles Donovan while off duty from the Jefferson Parish Sheriff's Office was approached at a Metairie Exxon Station by Deputy Barry Wood, also off duty, who advised Deputy Donovan that he believed an armed robbery was in progress at the Time Saver Store across the street from the service station. Prior to leaving the store, Deputy Wood had alerted the Time Saver employee on duty of a possible shoplifting attempt. When he exited, he noticed two men, one of whom was clad in a long coat from which an object was protruding that appeared to be a gun stock. Thereafter, he proceeded immediately to the service station to obtain assistance when he saw Deputy Donovan. The deputies advised the station's night attendant to contact the Sheriff's office before they returned to the Time Saver.

As the deputies approached the store, they saw a man standing near the wall walk up to the window of the store and motion to another man who was inside. The inside man immediately came out of the store and both men ran to the back of the building. The deputies, after identifying themselves and ordering the suspects to halt, pursued the men on foot. Woods pursued and subsequently lost the man suspected of carrying the gun. Donovan pursued the other suspect and as he neared him shouted again that he was a police officer after which he again ordered him to stop. At that point, the suspect stopped but turned and pointed a blue steel revolver in Donovan's direction. Donovan then pointed his gun at the suspect with the revolver but was shot in the right arm before he could fire. Donovan dropped his weapon when he was shot and was attempting to retrieve his gun with his left hand when he saw the man whom he later identified as defendant, Bruce Stucke, standing near him pointing a single barrel shotgun in his direction. When Donovan attempted to remove himself from the defendant's line of fire, the defendant fired striking Donovan in the left arm. Donovan thereafter looked up and saw the defendant standing a few feet away, pointing the shotgun at him again, and threatening to kill him.

Deputy Woods heard the shots, returned toward their location and observed the assailant advancing toward Donovan. Woods then fired at the assailant which caused him to flee to a waiting automobile.

The defendant was tentatively identified from a photographic line-up by Donovan as the person who had shot him and identified again by Donovan from a physical line-up conducted two weeks later.

ASSIGNMENTS OF ERROR NOS. 1 AND 11

In these two assignments of error, defendant contends that the trial court erred in refusing to permit expert psychological testimony regarding the ability of a witness to perceive and recall events pertaining to the shooting incident. He further asserts that the trial court erred in refusing to admit a proffer of the expert testimony sought and that the trial court erred in failing to suppress the photographic and line-up identifications of defendant.

Defendant filed a Motion to Suppress the photographic and line-up identifications. At the hearing on the motion Deputy Donovan testified that he gave a description of the suspect to three officers. While Donovan was hospitalized on the night of the shooting, three men were brought to the hospital for him to view. At that time, he mentioned to the other officers that one of the men somewhat resembled the assailant's physical appearance but did not identify him as the assailant. He further reviewed approximately 200 photographs while he was in the hospital but was unable to identify anyone.

Donovan viewed more photographs after he returned home identifying both the defendant and his co-defendant from photographic line-ups. His identification of defendant from the photographic line-up was not positive, but he requested that defendant be placed in a physical line-up. At the physical line-up [which was viewed and agreed to by defendant's attorney] Donovan positively identified the defendant as his assailant.

Defendant argues that the "prior depiction of the photographic spread of line-ups was impermissibly suggestive and reduced the degree of accuracy that would enable someone at a physical line-up to correctly identify the perpetrator." He further contends that the fact that defendant and one other line-up participant were wearing black crepe, jail-issued shoes made the line-up suggestive.

We conclude that defendant's contention that the fact that defendant was one of two line-up participants wearing jail issued shoes rendered it suggestive is without merit. It was established that at the jail soft soled shoes were distributed to inmates who only had hard soled shoes. However, if at time of arrest, a prisoner had soft soled shoes, e.g., tennis shoes, then no issue is necessary. In the instant line-up, two participants (one of whom is defendant) appear to be wearing jail issued shoes, three were in tennis shoes, and one was in hard soled shoes. The participant in hard soled shoes was defendant's brother placed in the line-up at defense counsel's request. Additionally, defense counsel was present during the line-up and our review of the record does not reveal that he objected to the wearing of jail issued shoes. Viewing the procedure as a whole, this factor does not render the line-up unduly suggestive.

We have carefully reviewed the record and the evidence does not indicate that the identification procedures were unduly suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 S.Ct. 140 (1977).

In the instant case the photographs of the line-up are in the record for our review. Our review of the six subjects in the line-up leads us to conclude that it was not suggestive. It is clear from the testimony adduced at the hearing on the motion to suppress identification that the procedures employed relative to the showing of the photographs and the conducting of the line-up were proper and free from undue suggestiveness. There was a sufficient matching of basic physical appearance, [e.g. build, hair, facial hair, and complexion] of the participants to reasonably test the identification. See State v. Guillot, 353 So.2d 1005 (La.1977); State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977).

Even if the identification procedures had been determined to have been suggestive, that alone would not render the identification inadmissible nor result in reversal. See State v. Nicholas, 397 So.2d 1308 (La.1981). State v. Davis, 385 So.2d 193 (La.1980). In the testimony of the victim here, he was positive in his identification of the defendant. He testified that he had an opportunity to view his face at the time of the shooting and the degree of his attention to the face of defendant was high because of the very nature of the incident. See State v. Guillot, supra.

The trial court did not err in refusing to suppress the identification of defendant. The totality of circumstances here demonstrates that the identification was reliable.

Defendant further contends that the trial court erred in excluding the testimony of an expert concerning the quality of an identification. At trial defendant called as a witness Dr. Robert Buckhout, an experimental psychologist who specializes in the psychology of witnesses. Defendant sought to elicit testimony from this witness to enlighten the jury as to the quality of the victim's identification so that the jury would have a standard against which they could make an evaluation of the victim's identification. Dr. Buckhout testified that in his studies he creates incidents for case crimes and stages them in live situations. In other words the crimes are staged; the person acting as the criminal and very often the victim are both actors. No actual crime has ever been an issue in his studies and none of his victims have been shot in his staged crimes.

After argument, the trial judge ruled that the doctor's testimony would not be presented to the jury because of his "grave doubt about the competency of this evidence." This concern was the manner in which the tests were conducted and the number of variables in the experiments. He further rejected this testimony concluding that the jury did not need this testimony to evaluate the identification of defendant and that the jury's standard in judging such evidence is their own training and experience.

It is a well settled rule that a trial judge is vested with wide discretion in determining the competence of an expert witness. State v. Boyer, 406 So.2d 143 (1981). Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; his rulings on the qualification of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La.1978).

Although our research has revealed no cases where the issue of the acceptance of expert testimony regarding eyewitness identification has arisen in Louisiana, we have noted such cases in other jurisdictions. In State v. Ammons, 208 Neb. 797, 305 N.W.2d 812 (1981), the Supreme Court, in a case which involved a robbery,...