State v. Valentine

• Decision Date: 15 November 1990
• Docket Number: No. 88-KA-1361,88-KA-1361
• Parties: STATE of Louisiana v. Alvin J. VALENTINE.
• Court: Court of Appeal of Louisiana — District of US

Page 533

570 So.2d 533

STATE of Louisiana v. Alvin J. VALENTINE.

No. 88-KA-1361.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 15, 1990.

Harry F. Connick, Dist. Atty., Michele Smith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee State.

Stanton E. Shuler, Jr., Leake & Anderson, New Orleans, for defendant-appellant Alvin J. Valentine.

Before SCHOTT, C.J., and KLEES and PLOTKIN, JJ.

KLEES, Judge.

On June 10, 1987, the appellant Alvin J. Valentine was charged with armed robbery. On August 6th, a twelve-member jury found him guilty as charged. He waived all delays and was sentenced to serve twenty-two years at hard labor without benefit of parole, probation, or suspension of sentence. From this conviction and sentence this appeal follows.

Appellant asserts that:

1. The trial court erred in denying his motion to suppress identification.

2. The trial court erred in failing to supply the transcript of the preliminary hearing.

3. The state failed to prove beyond a reasonable doubt that appellant was the perpetrator of the crime.

4. The trial court failed to supply the transcript of the trial court's jury instructions, thereby depriving appellant of his right to an effectual appeal.

FACTS:

At approximately 3:30 a.m. on May 13, 1987, Cassandra Mitchell and Edward Seymour were working at the Toddle House restaurant on General DeGaulle Boulevard. Suddenly, a man entered the restaurant wearing a ski mask, blue warm-up pants or jumpsuit, a red shirt with the word "Maze" written on it, and a mesh shirt over the red shirt. Ms. Mitchell screamed for Seymour, and when he emerged from the back of the restaurant he saw the man holding a knife to Ms. Mitchell's neck. The man threatened to kill Ms. Mitchell if Seymour came closer, and Seymour told the man not to hurt her, but to take the money instead. Ms. Mitchell opened the register, and the man took the money and fled. Seymour ran out the door after the man, ran to the gas station next door, and told the worker there to call the police.

Seymour testified that no more than fifteen minutes prior to the robbery, he saw a man wearing warm-up pants, a Cango hat, and a red shirt with "Maze" and a picture of Frankie Beverly on it. The man's hair was in braids, and he was carrying a duffle bag. He also testified that the man who robbed the restaurant had braids in his hair which he could see sticking up in the ski mask. Seymour estimated $70.00 was taken from the cash register.

Trooper Willumitis, who was patrolling the Westbank, heard the broadcast of the robbery and a description of the perpetrator. Because he was near the area, he drove into a subdivision located behind the restaurant and observed the defendant Alvin Valentine standing between two school buildings approximately two blocks from the restaurant. Valentine was wearing jean shorts and a red shirt with "Maze" and a picture of Frankie Beverly on it. Valentine was breathing heavily and was sweating profusely. The trooper detained Valentine until N.O.P.D. officers arrived, and then Valentine was transported to the restaurant. There, while seated in the police car, he was viewed separately by Ms. Mitchell and Seymour, who both identified him as the robber. Officers searching the area found a Cango hat and a duffle bag with $62.00 approximately one block away from the restaurant.

Alvin Valentine denied robbing the restaurant. He testified he was walking from his house to a friend's house when two officers stopped him, asked him many questions, and then allowed him to leave. He testified he continued walking and was then stopped by the trooper, who detained him for N.O.P.D. He testified he was then taken to the restaurant where he was viewed by one man. He estimated he was detained at the restaurant for at least one and one half hours until he was told of the robbery. He explained that he had become sweaty from wrestling with his friend Eric before he left home, which was at least twenty-five minutes before the first officers stopped him. He also testified that his wife was present when he called his friend and told the friend he was going to visit him. However, none of these witnesses were presented at trial. He denied wearing any other clothes except those he wore at the time of his arrest. He admitted having a prior conviction for carrying a concealed weapon.

In rebuttal, Officer Bonura testified that she and her partner stopped Valentine at 3:22 a.m. on Gen. DeGaulle approximately one half of a mile from the restaurant. At that time, he was wearing a blue jumpsuit with a red shirt underneath the jumpsuit.

I.

By his first assignment of error, the appellant contends the trial court erred by denying his motion to suppress the identification. Specifically, he argues the procedure used when Ms. Mitchell and Seymour identified him was unduly suggestive.

When reviewing an out-of-court identification procedure for its constitutionality and hence its admissibility in court, the appellate court must first make a determination of whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Amos, 550 So.2d 272 (La.App. 4th Cir.1989); State v. Holmes, 550 So.2d 249 (La.App. 4th Cir.1989), writ den. 556 So.2d 56 (La.1990); State v. Lee, 545 So.2d 1163 (La.App. 4th Cir.1989). If the court finds in the affirmative, the court must then decide, under all the circumstances, if the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Manson, supra; Prudholm, supra; State v. Guillot, 526 So.2d 352 (La.App. 4th Cir.1988), writs den. 531 So.2d 471 (La.1988). In Manson, the Court set forth a five-factor test to determine whether the identification was reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. ¹

Generally, one-on-one identifications are not favored, but they may be justified under certain circumstances. State v. Bickham, 404 So.2d 929 (La.1981); Amos, supra. However, in cases where such identifications were upheld, the identifications occurred within a short time after the crime occurred, and either occurred at or near the scene of the crime or occurred as an inadvertent meeting between the witness and the defendant. ² In Bickham, the suspect was immediately apprehended and returned to the scene of the crime where the victim identified him as the assailant. The Court found that under these circumstances, there was no substantial risk of misidentification.

In Amos, the two defendants were arrested after a chase and were taken back to the scene of the robbery approximately thirty minutes after it occurred. While the victim stayed inside the store, the officers took each defendant separately from the car and had them stand outside the store to have her view them. She positively identified each defendant. This court upheld the identifications. ³

In Guillot, the victim and a witness identified the defendants as they were being led back to a police car which was parked in front of the bar where the crime occurred. The identifications occurred within two hours of the crime, and each identification was spontaneous. This court upheld the admissibility of these identifications. In State v. Brown, 519 So.2d 826 (La.App. 4th Cir.1988), the victims coincidentally viewed the defendant as he was being led into the police station where they had gone to report the robbery. The identifications occurred within twenty-five minutes of the robbery. These identifications were upheld by this court.

In State v. Loyd, 425 So.2d 710 (La.1982), the mother of the kidnapped and murdered victim was asked to come to police headquarters to view the defendant to see if he resembled the assailant. She entered the police station and observed through an open door the defendant sitting in the officers' lounge. No one called her attention to the defendant, but she immediately identified him as the assailant. The Court found this identification to be reliable and therefore admissible.

Here, at the suppression hearing an officer testified that the description given by Ms. Mitchell and Seymour of the robber was a black male wearing a blue jumpsuit over a red T-shirt with the word "Maze" in black letters and with a picture of Frankie Beverly. The appellant was apprehended approximately one and a half blocks from the restaurant within half an hour of the robbery. He was out of breath and sweaty, and he was wearing jean shorts and a red Maze/Beverly T-shirt. The appellant was driven back to the restaurant, and he was viewed by both Ms. Mitchell and Seymour as he sat handcuffed in the back of the police car. At the hearing, Ms. Mitchell testified she identified him mainly because of the red T-shirt since she had not seen his face due to the ski mask he wore during the robbery. However, Seymour testified that he had seen the appellant passing the restaurant just prior to the robbery, dressed in warm-up pants and a black see-through shirt worn over the red Maze/Beverly T-shirt. He also testified the robber had braids which he could see under the ski mask (the appellant had braids at the time of his arrest), and the robber's eyes were the same as the appellant's eyes.

These witnesses' testimony at trial was very similar to that at the suppression hearing. In addition, at trial the same officer testified Ms. Mitchell and Seymour separately went outside to view the appellant. Ms. Mitchell estimated the police returned to the restaurant with the appellant approximately ten minutes after the robbery. Seymour testified that when he saw the appellant outside the...