author: PICKETT, Judge.

text:
    STATE of Louisiana v. Devonte Len ROBERTS
    18-832
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    John F. DeRosier, District Attorney, Fourteenth Judicial District, Shelley A. Deville, Ross Murray, Assistant District Attorneys, P. O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT-APPELLANT: Devonte Len Roberts
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   PICKETT, Judge.

FACTS

On December 12, 2013, the defendant, Devonte Len Roberts, was charged by bill of information with armed robbery, in violation of La.R.S. 14:64 ; armed robbery with a firearm, in violation of La.R.S. 14:64.3 ; aggravated assault upon a peace officer with a firearm, in violation of La.R.S. 14:37.2 ; attempted armed robbery, in violation of La.R.S. 14:64 ; attempted armed robbery with a firearm, in violation of La.R.S. 14:64.3 ; and aggravated assault with a firearm, in violation of La.R.S. 14:37.4. All six counts arose out of a September 26, 2013 robbery of a Wing Stop restaurant.

Prior to beginning the trial on January 29, 2018, the state filed an amended bill of information charging the defendant with one count of armed robbery with a firearm, in violation of La.R.S. 14:64 and 14:64.3 ; one count of aggravated assault upon a peace officer with a firearm, in violation of La.R.S. 14:37.2 ; one count of attempted armed robbery with a firearm, in violation of La.R.S. 14:27, 14:64, and 14:64.3 ; and four counts of aggravated assault with a firearm, in violation of La.R.S. 14:37.4.

Following a two-day trial, the defendant was unanimously found guilty as charged on all counts except count two, where a ten-two jury found the defendant guilty of the responsive verdict of attempted aggravated assault upon a peace officer in violation of La.R.S. 14:27 and 14:37.2.

On April 18, 2018, the defendant was sentenced to serve ten years at hard labor on each count of aggravated assault with a firearm; five years at hard labor on the attempted aggravated assault on a peace officer; and thirty years at hard labor for both the armed robbery with a firearm and the attempted armed robbery with a firearm; all of the defendant's sentences were ordered to run concurrently to each other.

The defendant now appeals his convictions and sentences, alleging a single assignment of error, namely, the state failed to sufficiently prove he was the individual who robbed the Wing Stop restaurant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there is an error patent concerning two of the defendant's sentences. The trial court imposed indeterminate sentences for the defendant's convictions of armed robbery with the use of a firearm and attempted armed robbery with the use of a firearm.

Louisiana Revised Statutes 14:64 provides a sentence of ten to ninety-nine years without the benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:64.3 requires the imposition of an additional five years at hard labor without the benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under La.R.S. 14:64 (and 14:27 for attempted armed robbery).

For each conviction, the defendant was sentenced to serve thirty years at hard labor with no indication of whether that included the additional five years required by La.R.S. 14:64.3. In State v. White , 42,725 (La.App. 2 Cir. 10/24/07), 968 So.2d 901, the defendant was convicted of two counts of armed robbery with a firearm and sentenced to thirty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on each count to run concurrently. In its error patent review, the court noted that the trial court did not specify what portion, if any, of the defendant's thirty-five year hard labor sentence without benefits was imposed under La.R.S. 14:64.3. The court found that the absence of a specification that the defendant's sentences included a term under La.R.S. 14:64.3 rendered the defendant's sentence indeterminate. The court vacated the sentences and remanded the matter for resentencing for clarification of whether the defendant's sentences included any additional punishment under La.R.S. 14:64.3. Id. See also State v. Billingsley , 11-1425 (La.App. 3 Cir. 3/14/12), 86 So.3d 872.

Accordingly, in this matter, we vacate the sentences imposed for the convictions of the armed robbery with a use of a firearm and attempted armed robbery with use of a firearm and remand the case to the trial court for resentencing in accordance with La.R.S. 14:27, 14:64, and 14:64.3. The trial court should clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.3.

ASSIGNMENT OF ERROR

The state failed to sufficiently prove that Devonte Roberts was the person who robbed the Wing Stop and ran from police.

DISCUSSION

The state's first witness was Robert Broussard, the supervisor of information and custodian of records for Calcasieu Parish 911. Mr. Broussard described the technical manner in which 911 calls are monitored and recorded and acknowledged providing the Lake Charles Police Department with a CD containing calls related to the robbery of the Wing Stop on September 26, 2013. Those calls were introduced into evidence and played for the jury.

The state then called Jasmine Miller, the manager of the Wing Stop at the time of the robbery. Ms. Miller testified that right around midnight, just before the restaurant closed, she noticed someone slowly jogging up to the store and "[she] noticed that he had Timberland boots on, a facemask, and a gun." She told everyone they were getting robbed and "grabbed the phone and [she] immediately called 911 and [she] hid." Ms. Miller did not know what color the mask was and did not make eye contact with the robber; however, she described his boots as "very distinct boots," noting they were yellow-colored work boots. She knew the robber was a black guy but could not recall what he was wearing aside from the boots and mask.

Ms. Miller could not identify the defendant in court as the person who robbed the Wing Stop, but she testified she knew the person arrested that night was the person who committed the robbery because of his distinctive walk. She also noted the person arrested that night "had the Timberland boots on." She noted the robber was thin and around her height, which was five feet, nine inches.

On cross-examination, Ms. Miller testified that she sees Timberland boots often because "[a] lot of people wear them, especially [her] age." After reviewing her previously recorded statement to police, Ms. Miller acknowledged she never mentioned the boots to law enforcement on the night of the robbery, but noted she told them the robber was dark-skinned and noted the defendant was light-skinned. She also acknowledged she told law enforcement the robber was wearing a grey t-shirt, which she had not remembered during her previous testimony. Ms. Miller testified that she did not recall seeing any distinguishing features, such as tattoos, on the robber's arms.

On re-direct, Ms. Miller stated the style and color of the boots worn by the person arrested the night of the robbery were the same as the boots worn by the robber. She also reiterated that, despite the confusion regarding the defendant's skin tone, she is certain the person arrested the night of the robbery was the perpetrator because of his walk.

The state's next witness was Brandon McDaniel, one of the customers at the Wing Stop at the time of the robbery. Mr. McDaniel testified he and his friends were frequent patrons of the establishment and "knew the people that worked there." He testified a person came up to the restaurant from the left wearing a bandana, Ms. Miller said they were about to be robbed and disappeared, then the person walked in and robbed them at gunpoint. Mr. McDaniel testified the robber was wearing a blue bandana with a white design on it, blue jeans, yellow Timberlands, and a grey shirt. He stated the perpetrator lifted his shirt and revealed a gun once he had entered the building. Mr. McDaniel stated he described the individual as a "dark male," but commented that the lighting outside, where he saw the defendant as he came into the store, comes mainly from across the street and stated he did not keep his eyes on the person very long. He did note the individual had short hair. Mr. McDaniel testified the individual was skinny and took two cellphones from him, as well as his wallet. He described the phones as an iPhone 5S in a blue and green case and a red Galaxy S4; his wallet was a brown bi-fold. Mr. McDaniel testified that he positively identified the defendant as the person who robbed him on the night of the robbery, noting that in the same lighting "he appeared to be the same skin tone. He had the same pants on as well as the same shoes, the boots."

On cross-examination, Mr. McDaniel noted he told law enforcement on the night of the robbery the suspect was wearing a grey t-shirt, noting it was "more than likely" short-sleeved. He did not remember if he told police he saw any tattoos on the robber. Mr. McDaniel acknowledged blue jeans and Timberland-style boots were both pretty common attire. He also recalled describing the suspect as a "dark-skinned male;" however, he noted the defendant was "light to medium." After reviewing his statement to law enforcement on the night of the robbery, Mr. McDaniel acknowledged he described the robber as "darker not light at all." Mr. McDaniel also testified that he did not remember, at trial or during his initial statement, whether or not the perpetrator of the robbery had any tattoos. Mr. McDaniel also acknowledged he told law enforcement the suspect was wearing a black leather belt.

On re-direct examination, Mr. McDaniel testified he was not concerned with the robber's arms, he was concerned with the gun being pointed at him. He also stated that he was "one hundred percent" certain the person law enforcement arrested and brought to the Wing Stop on the night of the robbery was the person who robbed him.

The state then called Dion Demouchet, the cook at the Wing Stop on September 26, 2013. Mr. Demouchet gave the same description of what happened as Mr. McDaniel and Ms. Miller: a man walked past the window, Ms. Miller shouted they were being robbed and ran, the man entered and pulled out a gun. Mr. Demouchet testified the suspect demanded to know "where's the girl?" According to Mr. Demouchet, the perpetrator started banging on the cash register demanding to know where the girl was. Mr. Demouchet stated he could not tell the individual how to get into the register and he never saw the person open the register. He described the suspect as "lean and tall," between 5'9? and 6' tall, a black male with a purple mask. Mr. Demouchet remembered the robber was wearing Timberland boots and dirty or dingy jeans but did not recall any other details about his clothing.

Mr. Demouchet described the individual who robbed them as dark skinned, stating he was around Mr. Demouchet's skin tone. On cross-examination, he described the defendant as "bright." Mr. Demouchet testified that an African-American like himself would be lighter if they were deprived of sunlight for the better part of five years.

The state then called Ryan Nugent, another of the patrons at the Wing Stop on September 26, 2013. Mr. Nugent recounted essentially the same story. He said the manager alerted everyone they were about to be robbed, a man came in with a gun and demanded everyone get down and tried to break into the cash register while yelling about the manager's being missing. Mr. Nugent testified he could see the perpetrator's black boxers, noted he was wearing light blue jeans and a grey shirt, and recalled yellow "Timberland shoe kind of leather boot." Mr. Nugent stated he had his head down the entire time, which was why he was so confident about the shoes. Mr. Nugent commented there were shots fired as the suspect left the restaurant.

Mr. Nugent testified that when law enforcement brought a suspect back to the Wing Stop shortly thereafter, the suspect had the same clothing, except he was no longer wearing the grey shirt or dark bandana. Mr. Nugent testified the individual who robbed them was a black male, noting "[h]e wasn't really black like dark, dark at that point. Probably closer to the lighter side, without getting into like a [C]rest whitening strip thing, I guess." He also stated he fully believed the individual arrested and brought back to the Wing Stop was the individual who committed the robbery as he "saw the shoes, the pants, the boxers, and about the same height."

Mr. Nugent agreed it seemed the robbery suspect knew there should have been a female employee present, based on his repeated demands to know where she was. Mr. Nugent noted he was certain the suspect brought back to the Wing Stop that night was the person who robbed the restaurant, but did not remember if he told police that during his video interview, stating "[d]o I recall seeing that individual come back wearing the same clothes, yes; but I do not know about the video to be honest."

The state's next witness was Darren Marcantel, another Wing Stop patron at the time of the robbery. Mr. Marcantel gave the same basic sequence of events as the other witnesses. He said that he and his friends were eating, Ms. Miller shouted they were being robbed, then an individual entered, took out a gun and robbed them of their cellphones. He also recounted the individual was trying to force the cash register open. Mr. Marcantel stated when he picked up his head there was a bullet "like right by [his] head and that's about it."

Mr. Marcantel described the individual as around six feet tall with skin that was "like a caramel color," average sized and wearing a grey shirt, jeans, Timberland like tan, steel-toed work boots and a bandana over his face. Mr. Marcantel testified he believed the individual law enforcement brought back to the Wing Stop that night was the same person based on "[t]he shoes, the pants, and the skin color."

Mr. Marcantel stated he thought his memory was better at trial than it was the night of the robbery because he was nervous at the time. After reviewing his statement to law enforcement the night of the robbery, Mr. Marcantel acknowledged "[he] said dark skin, and then [he] said kind of dark but not completely dark." He then claimed he doesn't distinguish between shades of color for African Americans, stating "No, everybody's the same."

The state then called Corporal Tony Ryan Magee, a seven-year veteran of the Lake Charles Police Department. Corporal Magee testified he was approximately two blocks from the Wing Stop when the robbery call came over the radio and he quickly responded. He testified that as he exited his vehicle, the robbery suspect exited the restaurant and pointed his weapon at Corporal Magee. At that point, Corporal Magee fired a shot at the suspect, who ran west along the front of the building. Corporal Magee stated he took cover behind his vehicle and fired three more shots at the fleeing suspect. Noting the suspect fled south, Corporal Magee radioed the suspect's description and began pursuing the suspect; other officers established a perimeter in the area and the defendant was "apprehended coming out on Ryan Street." Corporal Magee testified that as he pursued the suspect south, Corporal Russell informed him he saw the suspect flee between a fence and a house going southbound, still armed. Corporal Magee recounted pursuing the suspect to 3007 June Street, where an occupant of the house told law enforcement someone was on his roof. Officers responding to the call established a perimeter around the area, including Ryan Street.

Corporal Magee testified that he recognized the individual who was arrested on Ryan Street shortly thereafter as the individual he saw fleeing the Wing Stop upon his arrival, noting:

He had the same pants on, same boots on. They were a Timberland-type boot. He had scratches all over his arms and hands from jumping fences. That's something normal whenever a suspect flees from us. They get their hands cut up and scrapes and bruises. He was sweating profusely. He had taken his shirt off and taken the mask off and obviously he didn't have any evidence on him, no gun, none of that, anything like that; but everything else, his body type, his skin tone, it was 100 percent him.

Corporal Magee also testified that he specifically noted in his report the suspect was a "light-skinned black male." Corporal Magee acknowledged that he did not specify in his written report that he identified the individual arrested in part because of the scratches or because he was sweating profusely.

The state then called Detective John Russell, a seventeen-year veteran of the Lake Charles City Police Department. Detective Russell described arriving on the scene shortly after Corporal Magee, noting he heard shots being fired as he arrived. Detective Russell testified he headed down and set up his car on the intersection of June Street and Lucille Street as part of the effort to establish a perimeter. He also stated he eventually did a "walk and track" with Officer Fontenot, one of the department's canine officers at the time. They located a gun and multiple cell phones taken during the robbery in an abandoned shed behind one of the homes in the 3000 block of June Street.

Corporal Dustin Fontenot, a fourteen-year veteran of the Lake Charles Police Department, testified to his involvement in the case. Corporal Fontenot testified the perimeter was already established between Ryan Street and June Street when he arrived. Corporal Fontenot testified he was with Sergeant Wall, who used her unit's PA system to announce multiple times that they were going to send in a dog to find and bite the suspect if he did not come out, at which point officers radioed in that an individual entered Ryan Street from behind the businesses and was subsequently identified as the robbery suspect.

Following the identification of the suspect, Corporal Fontenot took his canine through the neighborhood, where he was attracted to a shed behind 3003 June Street and they subsequently located "a series of objects, which appeared to be some cell phones, a wallet, and a gun sticking out of the ground, and also there was a blue item."

Officer Roland Castille, a three-year veteran of the Sulphur Police Department who previously spent "just under a year" with the Lake Charles Police Department, testified that he was in the field training program on the night of the robbery. Officer Castille testified that he was training with Corporal Hampton on the night of the robbery and Corporal Hampton was driving. Officer Castille noted he and Corporal Hampton set up in the parking lot of Rhinestone Runway, a business south of the 3000 block of Ryan Street. Officer Castille noted he looked back at Corporal Hampton briefly and then looked back to see a black male come from behind the building heading south on Ryan Street. Officer Castille testified he and Corporal Hampton began following the suspect, who noticed them behind him and picked up his pace before they apprehended him.

Officer Castille testified that when they apprehended the individual "he was kind of getting belligerent." He noted the individual was sweaty "and it looked like he had run through like a briar patch or he had vegetation on him." Officer Castille noted the suspect was breathing heavily but was not sure if it was simply because he was being belligerent. Officer Castille acknowledged that his written report stated the suspect complied with all commands given to him.

Corporal David Hampton, a twelve-year veteran of the Lake Charles Police Department was the state's next witness. Corporal Hampton corroborated Officer Castille's testimony, stating they were on foot in the parking lot of Rhinestone Runway as part of the perimeter. Corporal Hampton testified the suspect was sweating profusely when they stopped him, he had small cuts or scratches on his arms, and his pulse was racing. Corporal Hampton acknowledged he did not note the sweating, scratches, or racing pulse in his report, but testified he did not go into great detail because it was simply a supplemental report.

Detective Larry Newingham, a fourteen-year veteran of the Lake Charles Police Department, took the stand next. Detective Newingham recounted receiving a 911 call in reference to someone being on the roof of a house near the Wing Stop during the search for the robbery suspect. He noted he got on top of the house the following day and noticed what appeared to be smudges and foot prints on the roof.

The state then called Colby Thompson, a retired eighteen-year veteran of the Lake Charles Police Department who retired as a homicide detective. Mr. Thompson stated he assisted Detective Franklin Fondel and the evidence technician in recovering evidence. Mr. Thompson also testified he recovered a grey t-shirt and some gloves from behind Rhinestone Runway the following day, once there was enough light to search. He also noted they found an area where a person had been sleeping nearby, which turned out to be a homeless man. Mr. Thompson identified the grey t-shirt which was recovered, which had human feces on it. Mr. Thompson did not recall if the shirt was short-sleeved, long-sleeved, or sleeveless.

Lieutenant David Streva, a twenty-five-year veteran of the Lake Charles Police Department, took the stand next. Lieutenant Streva testified that he was in charge of the evidence room, and he identified a blue baby burp cloth recovered in conjunction with this case. He also identified a Lorcin .380 handgun. Lieutenant Streva testified the wallet and cell phones recovered were photographed and released to the individuals from whom they were stolen.

The state next called Christopher Singletary, a forensic DNA analyst from the Southwest Louisiana Crime Lab. Mr. Singletary was accepted as an expert in forensic DNA analysis. Mr. Singletary noted they tested gloves recovered in this case, which contained DNA from too many individuals to determine who the donors were. He also indicated the swabs from the roof did not contain enough information to make a comparison. Mr. Singletary also testified there were multiple contributors on the handgun which could not be interpreted, but they were able to identify a major contributor for the shirt that was recovered. The major contributor was matched to a Mr. Arthur Mayberry, the homeless man who slept behind Rhinestone Runway; the lab was unable to get a DNA profile for the minor contributor.

Mr. Singletary acknowledged he used a buccal swab from the defendant to create a DNA profile to use for comparison. He also acknowledged he did not initially test the grey shirt, noting the lab was publicly funded and could not simply test everything that was submitted to them.

Mr. Singletary testified the defendant was not the major contributor on the shirt, but he could not make a comparison between the defendant and the minor contributor as there was not enough material to get a reliable profile of the minor contributor. He further clarified that, aside from excluding the defendant as the major contributor for the shirt, he could not exclude the possibility that the defendant's DNA was on the other items tested.

The state then called Sergeant Franklin Fondel, a nearly twenty-year veteran of the Lake Charles Police Department. Sergeant Fondel testified that he was deployed to the Wing Stop around 12:30 a.m. on September 27, 2013, by his supervisor Lieutenant Anders with the task of handling the robbery investigation. Sergeant Fondel confirmed the defendant was the individual stopped on Ryan Street and subsequently identified by the witnesses as the individual who robbed the restaurant. Sergeant Fondel then identified the defendant in open court. He also noted that he attempted to interview the defendant around 4:45 a.m., but the defendant stated he did not want to make a statement but then began talking about the incident. Video of the interaction was introduced as State's Exhibit 63 and played for the jury. The video is roughly five minutes long and showed the defendant stating he was just walking down the street, asking how he could be charged with armed robbery for walking down the street, and inquiring about bond.

Sergeant Fondel testified regarding multiple photographs of the defendant taken immediately after the video, some of which show cuts to the defendant's arms and forehead that Sergeant Fondel described as fresh. Sergeant Fondel testified that following the Southwest Louisiana Crime Lab's discovery of Arthur Mayberry's DNA on the grey shirt, they learned that Mr. Mayberry was homeless and was living on the streets near the Wing Stop. He noted Mr. Mayberry told them he would often use shirts or other cloth that he found to clean himself when he used the bathroom. Sergeant Fondel identified State's Exhibit 2 as a picture of Mr. Mayberry, all five witnesses testified he was not the individual who robbed the Wing Stop. He also noted that the defendant gave his home address as a residence in Westlake.

Sergeant Fondel acknowledged that he had seen cuts similar to those the defendant had on him on people involved in a domestic dispute. He also noted that the defendant did not initially mention a domestic dispute, nor did law enforcement have any reports of a domestic dispute involving the defendant on September 26, 2013. Called back as a rebuttal witness during the defendant's case in chief, Sergeant Fondel acknowledged the absence of a domestic violence report does not always mean there was no incident.

Ms. Nora Mayes, the defendant's grandmother, took the stand on the defendant's behalf. Ms. Mayes, who lives at the Westlake address the defendant gave law enforcement when he was arrested, testified the defendant was not living with her in September of 2013. She testified, however, most of her seventeen grandchildren use her address as a permanent address. She testified the defendant has never lived with her.

The defendant then took the stand to defend himself. The defendant testified he had minor traffic tickets and a pending misdemeanor public intoxication charge in Georgia. He then acknowledged he also had two misdemeanor convictions for possession of marijuana. The defendant testified that he was employed as a scaffold builder at the time of the robbery. He stated he worked on the day of the robbery but got off early because of rain around 5:00 p.m. The defendant stated he was living with the mother of his one-year old child at the time off of Hazel Street which is near the Wing Stop.

The defendant acknowledged he was the individual arrested on Ryan Street shortly after the Wing Stop was robbed, but testified he was simply walking around trying to cool off after he and his child's mother got into an argument and physical altercation. The defendant gave a lengthy description of the route he was walking, which included him walking south on Ryan Street for a good distance before looping back and returning to Ryan Street just south of the Wing Stop, but on the opposite side of the street. The defendant noted he has extensive tattoos on his left arm that would be plainly visible if he was wearing a short-sleeved shirt. He also acknowledged that his skin had gotten lighter during the four years he has been in Calcasieu Correctional Center awaiting trial, but that he was not significantly lighter.

The defendant testified that after seeing a heavy law enforcement presence at the Wing Stop, he crossed the intersection back to the side of Ryan Street on which the Wing Stop is located and started walking away from the restaurant because he "didn't want to get caught up in that nonsense or whatever." He testified he was on a street or sidewalk the entire time he was walking. The defendant also acknowledged that he has been charged with battery on a correctional officer since he has been incarcerated.

On cross-examination, the defendant acknowledged there might have also been a separate simple battery charge while he was incarcerated. The defendant disputed a historical weather report that indicated there was no precipitation on the day of the robbery or the subsequent day, maintaining he was sent home early from work because of light rain. He testified that his girlfriend at the time had scratched him. The defendant acknowledged multiple additional misdemeanor convictions including contributing to the delinquency of a minor and additional possession of marijuana charges. The state asked the defendant if the night of the robbery was "the first time [he] had ever been shot at by cops," to which the defendant responded, "Yes, sir."

The defendant argued that Officer Castille and Corporal Hampton were wrong when they stated they saw him come onto Ryan Street from behind Rhinestone Runway; the defendant contends he crossed Ryan Street from the opposite side at an intersection further north and started walking south before the officers stopped him. He stated the officers "had to be" making it up when they announced on the radio that they saw him exit from behind the bridal store. The defendant continued to testify that he never came out from behind Rhinestone Runway, that he walked onto Ryan Street further north and on the opposite side of the street and law enforcement was lying about where they saw him when they arrested him.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends that his convictions should be overturned because the state failed to sufficiently prove he was the individual who committed the crimes in question. Because the defendant only challenges the state's proof of his identity as the individual who robbed the Wing Stop, we will only address that element. The analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Louisiana law requires the state "to negate any reasonable probability of misidentification" when the key issue in a case is the defendant's identity. State v. Hughes , 05-992, p. 5 (La. 11/29/06), 943 So.2d 1047, 1051 (citing State v. Weary , 03-3067 (La. 4/24/06), 931 So.2d 297, cert. denied , 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002) ). However, "[p]ositive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations." Id. (citations omitted).

There is no question that the defendant was the individual arrested on Ryan Street shortly after the robbery in question occurred, as he admitted during his own testimony. All five of the witnesses who were present in the Wing Stop when the restaurant was robbed identified the individual arrested as the individual who committed the robbery. Additionally, Corporal Magee confirmed the individual arrested was the suspect he shot at upon arrival at the Wing Stop. Accordingly, six different witnesses identified the defendant as the perpetrator of the armed robbery, although none of them identified the defendant in open court. As noted, Louisiana courts have long held that a single witness's identification is sufficient to sustain a conviction.

The defendant contests the validity of the eye-witnesses' identifications based upon their descriptions of the perpetrator as "dark" while describing the defendant as "light;" the failure of any of the witnesses to note tattoos on the robber's arms, as the defendant has multiple tattoos that he argues would be visible on his left arm if he had robbed the restaurant while wearing a short-sleeved t-shirt; and the fact that none of the witnesses made a "facial identification" of the defendant. This argument lacks merit.

The fact is numerous witnesses positively identified the defendant as the individual who robbed the restaurant on the night of the robbery. All five witnesses in the restaurant, as well as Officer Magee, were positive the person arrested the night of the robbery was the actual robber. Additionally, the defendant's answers on cross-examination at least insinuate he was present at the time of the robbery. On cross-examination, the following exchange occurred:

Q. On the night of this incident was that the first time you had ever been shot at by cops?
A. Yes, sir.

The evidence adduced at trial indicates the only person at whom law enforcement shot that night was the perpetrator of the armed robbery, as Corporal Magee fired multiple shots as the suspect fled the scene. Accordingly, the defendant's testimony on cross-examination could be viewed as an admission that he was present during the armed robbery. Indeed, the state began its closing argument with that very assertion.

Finally, the defendant's testimony regarding his activities on the night of the robbery was uncorroborated and directly contradicted by the testimony of Officer Castille and Corporal Hampton. Although the defendant contended he entered Ryan Street on the opposite side of the street from the Wing Stop, both officers testified they observed the defendant come onto the street from behind Rhinestone Runway, which is on the same side of the street as the Wing Stop. Additionally, the defendant was arrested just south of Rhinestone Runway.

All of this information was placed before the jury, which was tasked with deciding how much credibility, if any, to give to each witness's testimony. As noted by the supreme court in State v. Higgins , 03-1980, p. 17 (La. 4/1/05), 898 So.2d 1219, 1232, cert. denied , 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005), "[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]" The jury was aware of witnesses' statements that initially identified the individual who robbed them as dark-skinned but then all identified the defendant as that individual. Admittedly, none of the witnesses made an in-court identification of the defendant as the perpetrator; however, all of them stated the individual arrested on the night of the robbery was the correct person and that person was the defendant. The jury heard the defendant agree the night of the robbery was the first time a cop had shot at him. The jury heard the defendant's testimony about where he was walking, which contradicted the testimony of Officer Castille and Corporal Hampton. With all this information before them, the jury returned unanimous convictions on all but one count.

The defendant's argument does little more than ask this court to override the jury's determination the witnesses, who were all confident the individual arrested shortly after the robbery (the defendant) was the perpetrator of the robbery, were credible. In light of Higgins and Hughes , there is no basis for overruling the credibility determinations made by the jury. Under the Jackson standard, in the light most favorable to the prosecution, the state provided sufficient evidence for a rational trier of fact to find the defendant to be the perpetrator of the Wing Stop robbery and, thus, to find him guilty of all charges arising therefrom. Accordingly, the defendant's convictions are affirmed.

CONCLUSION

This court affirms the defendant's convictions. We vacate the sentences imposed for the convictions of the armed robbery with a use of a firearm and attempted armed robbery with use of a firearm and remand to the trial court for resentencing in accordance with La.R.S. 14:27, 14:64, and 14:64.3. The trial court should clearly set forth the portion of the sentence enhanced under La.R.S. 14:64.3.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.

      The defendant was given until January 3, 2019, to submit a pro se brief. A pro se brief was not submitted.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    STATE of Louisiana v. David Billy PARKER, Jr.
    18-797
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Mary Constance Hanes, Louisiana Appellate Project, Post Office Box 4015, New Orleans, LA 70178-4015, (504) 866-6652, COUNSEL FOR DEFENDANT/APPELLANT: David Billy Parker, Jr.
    John F. DeRosier, 14th JDC District Attorney, Karen C. McLellan, Assistant District Attorney, Elizabeth B. Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRET, Judge.

In this criminal appeal, David Billy Parker, Jr., ("Defendant") appeals his convictions of armed robbery and of false imprisonment with a dangerous weapon. For the following reasons, we hereby affirm Defendant's convictions. We vacate Defendant's sentence for false imprisonment with a dangerous weapon, and we remand the case for resentencing with the trial court being instructed to specify whether the sentence for false imprisonment with a dangerous weapon is to be served with or without hard labor. Defendant's sentence for armed robbery is affirmed as amended to reflect that it is to be served at hard labor, and it is affirmed as amended. Additionally, the trial court is directed to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

FACTS AND PROCEDURAL HISTORY:

On September 5, 2014, Defendant held his victim captive at gunpoint during an armed robbery of Advance America. On February 23, 2016, Defendant was charged with armed robbery with a firearm, a violation of La.R.S. 14:64.3 ; armed robbery, a violation of La.R.S. 14:64 ; and false imprisonment with a dangerous weapon, a violation of La.R.S. 14:46.1. The State amended the bill on October 19, 2017, to merge the count of armed robbery with the count of armed robbery with a firearm.

Trial began on January 23, 2018. Defendant moved for a mistrial on January 24, 2018, based on the testimony of witnesses Belinda Richard and Diana Brown. The trial court denied the motion at the conclusion of the hearing and denied Defendant's request to stay the proceedings pending a writ application to this court. This court denied Defendant's writ application on the showing made because it "[did] not contain all of the testimony and evidence that is or could be pertinent to the motion for mistrial[.]"State v. Parker , 18-64 (La.App. 3 Cir. 1/26/18) (unpublished opinion). This court also noted Defendant had an adequate remedy on appeal. Id.

The jury found Defendant guilty of armed robbery and of false imprisonment with a dangerous weapon. Defendant filed motions for new trial and for a post-verdict judgment of acquittal on March 13, 2018; the motion for new trial included an argument for mistrial. The trial court denied the motions on March 14, 2018.

The trial court sentenced Defendant to seventy-five years without benefit of parole, probation, or suspension of sentence for armed robbery and to ten years for false imprisonment with a dangerous weapon. The trial court ordered the sentences to run consecutively to each other and consecutively to prior sentences in another case for a total of 140 years in jail, with credit for time served.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are three errors patent.

First, the court minutes of sentencing indicate Defendant was sentenced to ten years in the Louisiana Department of Corrections on the false imprisonment conviction; however, the sentencing transcript does not indicate this. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62. Because the sentencing transcript indicates the trial judge did not designate whether this sentence was imposed with or without hard labor, we find the sentence is indeterminate. Accordingly, we vacate Defendant's sentence for false imprisonment with a dangerous weapon and the case is remanded for resentencing with the trial court being instructed to specify whether the sentence is to be served with or without hard labor. State v. Roberson , 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied , 07-1243 (La. 12/14/07), 970 So.2d 531.

Next, a hard labor sentence was required for Defendant's conviction of armed robbery. La.R.S. 14:64. As above, the court minutes indicate this sentence is to be served in the Louisiana Department of Corrections, but the transcript does not so indicate. The failure to impose the sentence at hard labor rendered it illegally lenient. State v. Loyden , 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166. Thus, pursuant to La.Code Crim.P. art. 882, we amend the sentence to reflect that it is to be served at hard labor. See State v. Matthew , 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied , 08-1664 (La. 4/24/09), 7 So.3d 1193.

Finally, the trial court failed to properly advise Defendant of the prescriptive period for filing an application for post-conviction relief. The trial court informed Defendant that he had two years from "today" (sentencing) to file an application. Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek post-conviction relief. Accordingly, we hereby direct the trial court to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant contends the trial court abused its discretion in denying his motion for mistrial after cross-examination revealed the District Attorney's Office conducted a photo lineup with two eyewitnesses on the morning before they testified at trial, and the prosecutor failed to disclose the matter or correct the matter during a bench conference. He argues the State's misrepresentation "effectively deprived [him] of the opportunity to prepare a defense to the identification evidence by employing a different trial strategy, or at the very least, attacking the identification at a pre-trial motion to suppress." Defendant contends he "was unwittingly lead [sic] into bolstering the State's case by revealing the fact of a prior identification to the jury," which did him "considerable prejudicial harm[.]"

"[A] mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial ...." La.Code Crim.P. art. 775.

Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith, 433 So.2d 688 (La. 1983). Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Brown, 96-1002 (La.App. 5 Cir. 4/9/97), 694 So.2d 435, 439, writ denied, 97-1251 (La. 10/31/97), 703 So.2d 19.

State v. Campbell , 13-130, p. 8 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137, 1141. Even when a mistrial is warranted, "the failure to grant a mistrial would not result in an automatic reversal of defendant's conviction, but would be a trial error subject to the harmless error analysis on appeal. Trial error is harmless where the verdict rendered is 'surely unattributable to the error.' " Id. at 1142 (citations omitted).

Defendant, both on appeal and in his post-trial motions, relies on State v. Wallace , 285 So.2d 796 (La. 1973). In Wallace , our supreme court reversed the trial court and ordered a mistrial where the victim identified the defendants at trial after viewing photographic lineups a few days prior to trial. The three defendants robbed the victim, who immediately reported the crime to police at a nearby café. Police stopped a car fitting the victim's description and returned to the café with the vehicle, the three men riding in it, and a pistol found in the vehicle. Although the victim identified the pistol, he had no opportunity to identify the three men. He was never asked to view a lineup.

On the Friday before the Monday trial, the victim was shown two cards, each of which contained five photographs. The victim identified two of the defendants. At the trial on Monday, the State's counsel asked the victim if he could identify the three men who robbed him; the victim pointed out the three defendants sitting at the table in the front of the courtroom with their counsel. The victim testified he was "not quite positive" about his identification of the alleged driver, and he said a street light was the only illumination at the crime scene. Id. at 797.

The supreme court dismissed the State's argument that the photo lineup identification was simply part of its pretrial preparation. Police officers had shielded the victim from the defendants at the time of their arrest. The State waited five months, until three days prior to trial, to present the photo lineup. No photographic identification had been requested from the victim on the two prior occasions when the case came up for trial. While two of the defendants had been within feet of the victim during protracted conversations with him and another witness on both of the prior trial dates, the victim testified he never recognized any of the defendants on either occasion. Nevertheless, three days after the victim's photo identification, he recognized one defendant in the hallway and another one in the courtroom. The court put great weight on the fact that the victim said he was told the defendants' photos were among those he viewed, heightening the chance of misidentification, even though the victim recanted that testimony during the State's re-direct examination. Thus, the court opined the photo identification was tainted to the extent it violated the defendants' due process rights.

The court next determined the victim's identification was not supported by sources other than the photo identification. It found nothing in the circumstances reported by the victim to substantiate his identification. Although the victim was able to identify the defendants Nicholas and Wallace, who he had identified at the photo lineup, at trial, he could not identify the defendant Baker until he saw him sitting at the defense table at trial. The court concluded the photo lineup identification of Nicholas and Wallace possibly tainted the in-court identification of all three defendants. Thus, the court vacated the defendants' convictions and sentences and remanded the case to the trial court.

The supreme court distinguished Wallace , 285 So.2d 796, in State v. Williams , 375 So.2d 364 (La. 1979). The Williams defendant contended the trial court erred when it denied his motion to suppress the victim's in-court identification as "tainted by an abortive attempted pretrial identification of the defendant." Id. at 369.

The victim could not identify the defendant when, prior to trial, she was shown a group of photographs, which included the defendant's picture. However, she positively identified him at trial. The defendant had the opportunity to question the victim about the photo lineup. She testified the photographs she saw did not really look like the defendant, and she could not remember until she saw him in person at the trial.

The supreme court distinguished Wallace , 285 So.2d 796, because the victim there was told the defendants' pictures were included in the photo lineups. Further, the Wallace in-court identification was based on the photo lineup, but in Williams , 375 So.2d 364, the victim could not identify the defendant from his photo.

The Williams court commented, "Even if suggestive identification procedures are proven by the defense, it is the likelihood of misidentification, and not the mere existence of suggestiveness, which violates due process." Id. at 369. The court noted the five-factor test of Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which balances "the corrupting effect of a suggestive identification." Williams , 375 So.2d at 369. Those five factors are:

the witness' opportunity to view the crime; the degree of attention paid by the witness; the accuracy of any prior description; the level of certainty displayed at the confrontation; and the amount of time between the crime and the confrontation.

Id.

The crime occurred during the day in a well-lit environment. The victim was face-to-face with the robber, and he made no attempt to hide his features. They engaged in a protracted struggle, and the victim recalled previous contacts with the defendant. The victim's in-court identification was unequivocal even though the incident was seven months prior to trial, and she was unable to identify the defendant in the photo lineup. After applying those factors, the Williams court determined the in-court identification "had a basis independent of any alleged, but unspecified, improprieties committed during the photographic line-up." Id. at 370.

In State v. Lynch , 94-543 (La.App. 1 Cir. 5/5/95), 655 So.2d 470, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466, one of the victims gave police a detailed description of the man who robbed him and his wife at gunpoint in their home. At trial, the victim testified he was ninety percent certain the defendant was that man. On appeal, the defendant argued the trial court should have granted his motion for mistrial because the State led him to believe the victims could not identify their assailant, and he suffered prejudice from the in-court identification.

The defendant contended he would have presented a different defense had he known the victim would identify him at trial. The victim had told the Assistant District Attorney he thought he could make the identification after looking closely at the defendant earlier in the trial. The trial court denied the motion for mistrial after noting "the discovery statutes do not require the State to inform the defense about identification procedures[.]" Id. at 478.

The first circuit noted:

The discovery rules of the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony. Discovery procedures enable the defendant to properly assess the strength of the state's case against him in order to prepare his defense. If a defendant is lulled into a misapprehension of the strength of the state's case by the failure to fully disclose, such prejudice may constitute reversible error. State v. Johnson, 604 So.2d 685, 691 (La.App. 1st Cir. 1992), writ denied, 610 So.2d 795 (La. 1993). The articles regulating discovery do not specifically require the state to provide information concerning a witness's ability to identify the perpetrator, and a defendant has no general constitutional right to unlimited discovery in a criminal case. See La.C.Cr.P. arts. 716 - 723 ; State v. Brossette, 93-1036 (La.App. 3d Cir. 3/2/94), 634 So.2d 1309, 1317, writ denied, 94-0802 (La. 6/24/94), 640 So.2d 1344.

Id. The first circuit found the State's discovery responses were not designed to mislead the defendant. Further, the defendant failed to show how he would have changed his strategy had he known the victim would identify him. The defendant had the opportunity to cross-examine the victim and show he had never viewed a live or photo lineup and had told no one except the State's counsel he thought he could identify the defendant. Additionally, testimony showed the victim was not positive of the identification. The first circuit held the "defendant suffered no substantial prejudice[,]" his right to present a defense was not adversely prejudiced by the identification, and he did not propose a "viable alternative trial strategy." Id.

In State v. Elie , 05-1569 (La. 7/10/06), 936 So.2d 791, the defendant sought a mistrial because the State failed to provide evidence of his prior convictions. The supreme court noted the State's continuing duty to disclose that information under discovery rules in order "to eliminate any unwarranted prejudice which could arise from surprise testimony." Id. at 802. However, the court found:

not every failure by the State to comply with these rules automatically requires a reversal. Only when such a failure results in prejudice to the defendant does it constitute reversible error. Thus, in the event the State failed to comply with the discovery rules, it must be determined whether the non-disclosure actually prejudiced the defendant and whether the trial court abused its discretion.

Id. After determining the defendant suffered no prejudice from the discovery violation, the supreme court reversed the appellate court and held the trial court correctly denied the defendant's motion for mistrial.

Here, Defendant directed a discovery request to the State on April 15, 2016. The request did not seek anything that would have created an ongoing obligation by the State to produce the photographic lineup or to notify Defendant of the witnesses' identification on the morning of their testimony. On August 2, 2016, the State authorized open file discovery.

The State's witness Diana Brown testified a man came to the door of Advance America on September 5, 2014, opened it, and told her someone would be there to take her payment soon. They spoke for "a couple of minutes[.]" Ms. Brown told police the man was "about five-six" with "[l]ight brown skin[,]" and "wearing a blue, they call them 'Nomex,' like the suits they wear at the plants." He had a short haircut. Ms. Brown saw the man again when she arrived in court to testify at trial. The State's counsel questioned her about her identification of Defendant:

Q. Now, do you recall - folks from the district attorney's office asked you if you'd be able to recognize him?
A. Uh-huh.
Q. Okay, and when you got in court earlier today to be sworn in did you get a look at him?
A. Yes.
Q. Okay.
A. Yes, I recognized him.
Q. And do you recognize him?
A. Yes.
Q. Can you point him out in the courtroom as to where he is?
A. He's sitting right there in the black suit with the white shirt.

Defendant's counsel referred to this testimony when he cross-examined Ms. Brown; however, we find that he did not properly represent what she had said. After a few questions about what happened at the store that day, counsel asked Ms. Brown:

Q. Now, you just testified a moment ago that folks from the D-A's [sic] office approached you about looking at a photo of someone?
A. Uh-huh.
Q. They asked you to identify that photo?
A. Right.
Q. And you knew that was - you picked [Defendant's] photo?
A. Right.
Q. And you identified him here in court?
A. Right.
Q. And that's why you were called as a witness?
A. Right.
Q. And that photo array - that photo that you saw, that was the first time that anybody showed you a photo in this investigation?
A. Right.
Q. And it's been over two years -
A. Yeah.
Q. - since this happened in 2014?
A. Uh-huh, yes.
Q. And you had no reason to think that that day was special in any way?
A. No.
Q. And you only spoke with that man at the door for a couple of minutes?
A. Right.

Defendant's brief argues "[o]n cross-examination, Diana Brown also revealed that people from the D.A.'s Office showed her a photographic lineup (that day, January 24, 2018) and that she had picked out the photo of [Defendant]." However, we find the record shows no such conclusion. Ms. Brown did not testify someone from the District Attorney's office approached her about looking at someone's photo. She only agreed someone from the District Attorney's office asked if she could recognize the man at Advance America. She said she got "a look at him" when she arrived in court for trial. She recognized the man in the courtroom and pointed him out to the jury.

Neither the State's counsel nor Defendant's counsel ever asked Ms. Brown if she had viewed a photo lineup or when that might have occurred. Even though Defendant's counsel asked Ms. Brown about viewing a "photo array" and about looking at a photo she identified as Defendant's, he never established when that viewing may have occurred or about any of the circumstances surrounding it. Ms. Brown's testimony provides no basis for Defendant's argument that the trial court should have granted a mistrial because she viewed a photo lineup on the morning of trial when the record fails to show she did. Further, as shown below, if the trial court erred in denying the motion for mistrial, the error was harmless. Accordingly, we find Defendant's complaints about Ms. Brown's photo identification of Defendant on the morning of trial lack merit.

Belinda Richard went to Advance America on September 5, 2014, to make a loan payment. She found the door locked, and a man she had never seen before came to the door and told her the manager was at Wal-Mart. When asked to describe the man, Ms. Richard pointed to Defendant, who was sitting at the defense table. Defense counsel objected, arguing Ms. Richard had not previously identified Defendant and was never shown a lineup. She contended the in-court identification was unduly prejudicial, and Ms. Richard had previously given only "a very generic description at the time when she was first interviewed by officers ...." The State responded that Ms. Richard was not required to give a previous identification, and Defendant would have the opportunity to cross-examine Ms. Richard and other witnesses who would also identify Defendant. Shortly thereafter, the State's counsel asked Ms. Richard if she recognized the man she saw at Advance America in the courtroom, and if she could identify where he sat and what he wore. The trial court recognized the "proper in-court identification of the defendant[,]" and Defendant made no objection.

The State's counsel made no reference to Ms. Richard's prior view of a photo lineup. On cross-examination, defense counsel established Ms. Richard saw the man at Advance America about five minutes and described him to detectives as a "not real dark" black male about five feet seven inches tall. When counsel asked Ms. Richard if detectives presented a photo lineup or pictures to her, she responded, "Not at that time." Ms. Richard testified the trial was her first time to identify Defendant in court, but she said she had identified Defendant from a photo lineup with six people in it earlier in the day at the District Attorney's office. Defense counsel pointed out Ms. Richard saw the man at Advance America for only five minutes two years prior to trial before she came into court and identified him. The State's counsel clarified Ms. Richard chose Defendant's photo from one of six she had seen in the lineup.

After Defendant's counsel moved for a mistrial, the State called Michelle Ledoux, felony trial assistant for the District Attorney's office, to testify. She testified Assistant District Attorney Jacob Johnson, the State's counsel, asked her on the day before to determine whether Ms. Richard and Ms. Brown could recognize Defendant in a photo lineup. She used the same type of photo lineup used by the Sheriff's Office. Ms. Ledoux did not suggest the robber's picture was in the lineup, point to any numbers, or infer any names.

The State introduced a copy of the photo lineup shown to the witnesses. The lineup shows six African-American men appearing to be about the same age, with similar hairstyles and features. Ms. Ledoux testified Ms. Richard and Ms. Brown both recognized Defendant's picture in the lineup and pointed to him without hesitation. Neither thought anyone else in the lineup could have been the robber she saw at Advance America. Ms. Ledoux's work was done as part of the State's trial preparation and prior to invoking the rule of sequestration. No exculpatory evidence pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) was elicited during the meetings with the witnesses, conducted separately from each other.

Applying the five-factor test of Manson , 432 U.S. 98, 97 S.Ct. 2243, to Ms. Richard's identification, we find that Ms. Richard had a short but ample opportunity to observe the man at Advance America. She had never seen a man working there before, and the man acted as if he had never been there before. Ms. Richard had called to find out the store closed at 7:00 p.m., and she had arrived around 6:30 p.m. Because the circumstances to which Ms. Richard testified seemed unusual to her, we find this could have caused her to pay greater attention and to observe details that were different from her usual visits to the store. She described the man she later learned was the robber in a manner consistent with Defendant's appearance. She identified Defendant from the photo lineup without hesitation after careful consideration of all the photos; she said she knew him immediately, even though more than three years had passed between the robbery and the trial. We find nothing was suggestive about Ms. Richard's identification during her observance of the photo lineup, and her identification of Defendant was reliable.

Further, Defendant has pointed to no authority to show the State's obligation to tell him of the photo lineup identification on the morning of the witnesses' testimony. The State responded to Defendant's discovery requests and provided open file discovery. Ms. Ledoux's testimony did not indicate any intent by the State to mislead Defendant or gain an unfair advantage at trial. Defendant has not shown how or if he was lulled into a misunderstanding of the State's case against him by the failure to disclose the photo identification on the morning of trial. As in Lynch , 655 So.2d 470, Defendant has not shown how he would have changed his trial strategy had he known of the photo identification that morning. Defendant had the opportunity to cross-examine both witnesses and point out any flaws in their identification. Thus, we find that the State's non-disclosure of the identification did not cause actual and/or substantial prejudice to Defendant. See Lynch , 655 So.2d 470 and Elie , 936 So.2d 791.

Additionally, if the trial court did err by denying Defendant's motion for mistrial, the error was harmless. An error is harmless when "the verdict was surely unattributable to the error." State v. Chapman , 96-152, p. 14 (La.App. 3 Cir. 10/9/96), 683 So.2d 1236, 1244, writ denied, 97-583 (La. 9/5/97), 700 So.2d 505.

Other evidence at trial clearly established Defendant as the man who robbed Advance America. The compelling testimony of Joanna Sanford alone, who spent an hour and a half in close proximity with Defendant as she feared for her life, was sufficient to establish Defendant's guilt beyond a reasonable doubt.

Ms. Sanford identified Defendant at trial as the man who came in her store showing interest in renting space in the building. He returned two or three hours later inquiring about a loan and the whereabouts of Ms. Sanford's co-worker. Ms. Sanford was alone with Defendant in the store about an hour and a half. Defendant pulled a gun on Ms. Sanford and threatened to kill her. Defendant met customers who came to the door while Ms. Sanford lay on the floor behind the counter, and he told them the store had closed early. He told Ms. Sanford he had to have $ 3,000. Eventually, Defendant told Ms. Sanford he would not kill her if he could take the surveillance system. He said he would kill her and her family if he or anyone in the group with which he worked was identified.

On January 6, 2017, the State supplemented its discovery response to include a photographic lineup in which Ms. Sanford identified Defendant as "the man that robbed [her] at Advance America on Sept. 5, 2014 by gunpoint." The identification had been made on December 9, 2015, at 9:02 a.m. at the Longhorn Restaurant, a truck stop in Vinton.

The detective in charge of the investigation contacted Ms. Sanford in December 2015, to say "she thought she had a possible suspect and asked if [Ms. Sanford] could help them identify him if that was the case. She asked Ms. Sanford to examine a group of photos "to see if it was possible that the guy who robbed [her] might be on it." She instructed Ms. Sanford to look very carefully at each picture more than once and to make sure she was confident with her answer. Ms. Sanford doubted the man who robbed her would even be on the photo sheet, even though she thought it was possible the man who robbed her was in the photo lineup. The detective "didn't make any comments, really, except to look carefully."

Ms. Sanford "knew immediately which photo was his" when she viewed the lineup. Nevertheless, she looked at every picture and examined them for about five minutes, looking at each one more than once. She "was 100 percent sure." She testified she would never forget his face. The detective did not lead her to any particular response. At trial, Ms. Sanford identified Defendant as the man she saw in her store that day who ultimately robbed her at gunpoint. She also testified she was "[a] hundred percent" sure the person she chose from the photo lineup was the man she pointed out at trial.

Detective Andree Daugereaux of the Calcasieu Parish Sheriff's Office was the lead detective on this case. About a year after this incident, she was speaking with other detectives who mentioned another case with similar details. The suspect in that other case was in jail. Detective Daugereaux asked for a photo lineup to be prepared, and she presented it to Ms. Sanford.

The detective confirmed Ms. Sanford examined each photograph, putting her finger on each one and looking at each face twice. Ms. Sanford had no idea of who the suspect might be. She selected Defendant's photograph. Detective Daugereaux said Ms. Sanford "was absolutely positive."

Detective Dustin Gaudet of the Lake Charles Police Department was involved in the investigation of an armed robbery at America's Best Suites on November 15, 2015, and an armed robbery on November 17, 2015, at "a payday loan place on Prien Lake Road," both in Lake Charles. A number of the details of those robberies matched the details of this incident. Defendant was convicted of both robberies.

We find that the jury, based on the evidence presented, would have convicted Defendant even without the testimony of Ms. Brown and Ms. Richard and without their identification of Defendant in the photo lineup on the morning of trial. The State did not rely on or use the photo lineup identification of Ms. Richard and Ms. Brown to prove its case. It had no obligation to tell defense counsel about the photo lineup identifications. Defense counsel raised the issue of the photo lineup; once he did, he opened the door for the State to pursue the line of questions. Defendant has not shown how the witnesses' viewing of the photo lineup prejudiced him or how he would have altered his defense had he known of the viewing or had he not brought it to the jury's attention. The State did not misrepresent the strength of its case by failing to advise Defendant of the photo identification on the morning of trial. Accordingly, we find that the verdict was surely unattributable to the trial court's denial of Defendant's motion for mistrial, even if that denial was error.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant argues the non-unanimous jury verdict violated his constitutional rights. He recognizes Louisiana courts have rejected this argument. However, "because the United States Supreme Court and/or the Louisiana Supreme Court may yet revisit the issue[,]" he preserved the issue for appeal.

Louisiana Code of Criminal Procedure Article 782(A) provides a defendant charged in a case "in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict." This language reflects the provisions of La.Const. art. 1, § 17.

The Louisiana Supreme Court has held La.Code Crim.P. art. 782(A) does not violate the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution. State v. Bertrand , 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738. Recently, in the November 6, 2018 election, Louisiana voters opted to change the constitutional provision and require unanimous verdicts. The amendment to La.Const. art. 1, § 17 states:

Section 17. (A) Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.

Because Defendant's offense occurred prior to January 1, 2019, the constitutional amendment does not apply to him. The pre-amendment provision and La.Code Crim.P. art. 782(A) were not unconstitutional. Thus, we find Defendant's assignment of error lacks merit.

DECREE:

In conclusion, we hereby affirm Defendant's convictions. We vacate Defendant's sentence for false imprisonment with a dangerous weapon, and we remand the case for resentencing with the trial court being instructed to specify whether the sentence for false imprisonment with a dangerous weapon is to be served with or without hard labor. Defendant's sentence for armed robbery is amended to reflect that it is to be served at hard labor, and it is affirmed as amended. Additionally, the trial court is directed to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

AFFIRMED IN PART, AMENDED IN PART, VACATED IN PART, AND REMANDED.

      Although Defendant's counsel indicated she would file simultaneous writ applications with this court and with the Louisiana Supreme Court, the supreme court has no record of any filing.

      Defendant did not allege insufficiency of the evidence as an assignment of error on appeal.

      Ms. Sanford lived in Orange, Texas. She and Detective Andree Daugereaux decided to meet in Vinton so that neither would have to drive as far as they would by meeting in Orange or in Lake Charles.