State ex rel. Babineaux

567 So. 2d 693, 1990 WL 136667
CourtLouisiana Court of Appeal
DecidedSeptember 20, 1990
DocketNo. CR90-126
StatusPublished

This text of 567 So. 2d 693 (State ex rel. Babineaux) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Babineaux, 567 So. 2d 693, 1990 WL 136667 (La. Ct. App. 1990).

Opinions

KING, Judge.

The issue presented by this appeal is whether the evidence was sufficient to adjudicate a juvenile as a delinquent child for distribution of cocaine.

Ronald Babineaux (hereinafter the juvenile), who is a minor, was charged by petition filed in the Natchitoches City Court with being a delinquent child because of committing the delinquent act of distribution of cocaine, a violation of La.R.S. 40:967(A). The juvenile was tried on the charge and adjudicated a delinquent child. At the dispositional hearing the juvenile was placed in the custody of the Louisiana Department of Public Safety and Corrections for a period of time not to exceed his twenty-first birthday. The juvenile timely appeals his conviction. We reverse.

FACTS

On July 8, 1989, Officer John F. Jackson of the DeRidder Police Department was working as a narcotics undercover agent in Natchitoches, Louisiana, in conjunction with the Natchitoches Parish Sheriff’s Department. Acting on a tip from a confidential informant, Officer Jackson went to the Fairgrounds Housing Complex in search of twins who were selling cocaine rocks. Accompanied by the confidential informant, Officer Jackson purchased three cocaine rocks from a person whom he testified at trial was the juvenile. Based on this evidence, the juvenile was charged with the delinquent act of distribution of cocaine and subsequently adjudicated a delinquent child. The juvenile appeals his conviction to this court, citing one assignment of error.

ASSIGNMENT OF ERROR NUMBER 1

The juvenile contends that the evidence adduced at trial was insufficient to support his adjudication beyond a reasonable doubt.

In order to obtain a conviction under La.R.S. 40:967(A), the State must prove beyond a reasonable doubt that the juvenile committed a delinquent act by distributing a substance which is classified under Schedule II as a controlled dangerous sub[695]*695stance; in this case, cocaine. La. C.J.P. Art. 73. The juvenile does not question the trial court’s finding that the substance cocaine was sold to Officer Jackson. The juvenile does not argue that a controlled dangerous substance was not distributed. Rather, the juvenile argues that he has not been adequately identified as the person who sold the cocaine to Officer Jackson.

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 (1979); State Ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). It is the role of the factfinder to weigh the respective credi-bilities of the witnesses and, therefore, the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See, State Ex rel. Graffagnino, supra. When the key issue is not whether a crime was committed, but whether the defendant was the perpetrator, the State must negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Smith, 430 So.2d 31 (La.1983); State v. Long, 408 So.2d 1221 (La.1982); State v. Pierre, 524 So.2d 1289 (La.App. 3 Cir.1988).

Officer Jackson, on direct examination by the State, testified as follows:

“Q. Let me ask you this, did you receive information from your confidential informant concerning the defendant Ronald Babineaux?
A. Yes, sir.
Q. And did you receive information from the confidential informant that he had twin brother, Donald Babineaux?
A. Yes, sir.
Q. And, were you — did you inquire as to how you, you know, could tell the difference, or did you make any inquiries as to that?
A. Well, on that purchase day that was my first time ever meeting the twins; of meeting one of them. He wasn’t wearing a shirt and he had a scar on one of his shoulders; he had been in an accident and—
Q. And the person that had the scar on ’ his shoulder that had been in the accident, is that the one you purchased the cocaine from?
A. Yes, sir.”

Following the testimony, Officer Jackson was asked to make an in-court identification of the juvenile. However, at the beginning of trial, with the trial judge’s prior knowledge and over vehement objection by the State, the juvenile’s twin brother, Donald Babineaux, was allowed to sit next to counsel at the defense table while the juvenile sat in another part of the courtroom.1 Predictably, Officer Jackson mistakenly identified the juvenile’s twin brother sitting next to counsel at the defense table as the one from whom he had purchased cocaine.

After this mistaken in-court identification, Officer Jackson then again positively testified that the person from whom he purchased the cocaine had a scar on one of his shoulders. Both the juvenile and his twin brother, upon the State’s request, then approached the witness stand and removed their shirts for the purpose of allowing Officer Jackson to identify the scar. He could find no scar on the shoulder of either the juvenile or his twin brother. At this time Officer Jackson realized he had made a mistaken in-court identification of the juvenile’s twin brother and that his testimony was not correct.

The juvenile and his twin brother were then seated and the direct examination of Officer Jackson continued:

“Q. All right. Did you see any other identifiable marks on the person that you purchased the alleged cocaine from?
[696]*696A. Well, he had a mark on his lip, a scar.
Q. Do you see that mark on either one of these fellowsf’] lips[?]”

At this point, the juvenile and his twin were asked to again approach the witness stand, and Officer Jackson identified the one with the scar on his lip as the juvenile. No other identification testimony or evidence was introduced at trial.

The juvenile’s mother, father, uncle, and cousins, all testified that the juvenile was out of town for a period of two weeks which included the day the narcotics sale to Officer Jackson took place. The trial judge did not find the testimony of the juvenile’s alibi witnesses credible and, after a review of the record, because of the inconsistency of the testimony, we agree.

Nevertheless, when all of the evidence concerning the identification of the juvenile is viewed in the light most favorable to the prosecution, as required under Jackson, the juvenile’s conviction still cannot stand. This conclusion is not just based on Officer Jackson’s initial misidentification of the juvenile’s twin brother, since in a situation involving twins it was virtually certain that the officer would mistakenly identify the individual sitting in the courtroom next to defense counsel as the juvenile that had been accused.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Smith
430 So. 2d 31 (Supreme Court of Louisiana, 1983)
State Ex Rel. Graffagnino v. King
436 So. 2d 559 (Supreme Court of Louisiana, 1983)
State v. Long
408 So. 2d 1221 (Supreme Court of Louisiana, 1982)
State v. Pierre
524 So. 2d 1289 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
567 So. 2d 693, 1990 WL 136667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-babineaux-lactapp-1990.