State v. Tate, KA-1549

• Decision Date: 31 July 1984
• Docket Number: No. KA-1549,KA-1549
• Citation: 454 So.2d 391
• Parties: STATE of Louisiana v. Darryl TATE.
• Court: Court of Appeal of Louisiana — District of US

Page 391

454 So.2d 391

STATE of Louisiana v. Darryl TATE.

No. KA-1549.

Court of Appeal of Louisiana Fourth Circuit.

July 31, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

Before GULOTTA, BARRY and CIACCIO, JJ.

BARRY, Judge.

Defendant pled guilty to second degree murder but reserved his right to appeal the denial of his motion to suppress identification. He claims the police used suggestive procedures and that the witness' limited opportunity to view the perpetrator during the crime was insufficient to constitute an "independent source of identification".

The homicide occurred about 2:20 a.m. during an armed robbery in a parking lot near S. Rampart and Calliope Streets in New Orleans. The victim, Anthony Jeffrey, was sitting in the driver's seat of his parked car and his friend Keith Dillan was in the front passenger seat. Dillan testified he'd had some drinks but his vision was not impaired. There were street lights at intervals along the street, including one light facing directly where Jeffrey and Dillan were parked. Dillan testified he saw the gunman as he approached their car, and looked directly at him for a few seconds as he leaned over the driver's seat to give him his money.

After Dillan gave the robber 40cents, the gunman demanded money from Jeffrey. Instead of giving his money, Jeffrey tried to start the car in an apparent attempt to get away. The gunman shot Jeffrey in the chest and fled. Dillan escaped and called police. Jeffrey was pronounced dead at the scene.

Defendant was linked to this homicide after he was charged with the armed robbery and attempted murder of a tourist outside the French Quarter. The gun found on defendant was tested and found to be the same weapon used to shoot Jeffrey.

Defendant moved to suppress the pretrial identifications by Dillan. The motion was denied and after the first day of trial defendant pled guilty to second degree murder, reserving his right to appeal the identification issue. State v. Crosby, 338 So.2d 584 (La.1976).

At the suppression hearing Officer Adams testified that a week after the shooting he conducted a photographic lineup and showed Dillan seven mug shots, including one of the defendant taken a few days earlier. The officer did not tell Dillan the suspect's photograph was among the seven, nor did he suggest which photograph to select. According to Adams, Dillan "positively identified a photograph of Darryl Tate as being the person who armed robbed him, attempting to rob the victim [and] who subsequently shot him to death." Adams said the date 4/5/81 (two days before the photo display) was on defendant's photo but he did not call the witness' attention to it.

Dillan corroborated Adams' testimony that he positively identified the defendant's photograph without any influence. He testified he saw the dates on the mug shots but paid no attention to them.

A week after the photographic lineup Ronald Richard, an officer from the criminal investigation bureau, conducted a physical lineup. He brought the defendant and several "fill-ins" from the House of Detention for the lineup. Dillan was alone and viewed each man. No one spoke to Dillan during the lineup or gave him hints. After the lineup Dillan told Officer Richard he recognized the first man in the lineup (who was the defendant) as the robber/killer. Only the defendant was included in both the photographic showing and physical lineup.

Dillan testified he saw defendant's face by the street light for several seconds while he was handing over his money; however, Dillan did not recall what the robber was wearing. Dillan said he'd had some beers that night but his vision was not affected.

In order to suppress an identification, a defendant must prove: (1) that the identification procedure was "unduly suggestive" and (2) that there was a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Neslo, 433 So.2d 73 (La.1983); State v. Prudholm, 446 So.2d 729 (La.1984).

A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness' attention is focused on the defendant. State v. Nelso, supra; State v. Smith, 430 So.2d 31 (La.1983). A lineup can also be suggestive if a sufficient resemblance of physical characteristics and features of persons in the lineup does not exist to reasonably test the identification. State v. Nicholas, 397 So.2d 1308 (La.1981) quoting State v. Robinson, 386 So.2d 1374 (La.1980). Strict identity of physical characteristics among the persons depicted in the photo or physical lineup is not required. All that is required is...