NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
ikCOURT OF APPEAL FIRST CIRCUIT
NUMBER 2020 KJ 0928
IN THE INTEREST OF M.J.
Judgment Rendered: FEB 1 9 2021
Appealed from the Juvenile Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 114187 Honorable Gail Grover, Judge Presiding
Hillar C. Moore, III Counsel for Appellee
District Attorney State of Louisiana Andrea D. Neal
Assistant District Attorney Baton Rouge, Louisiana
Katherine M. Franks Counsel for Defendant/ Appellant Madisonville, Louisiana M.J.
BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ. GUIDRY, J.
The State filed a delinquency petition in case number 114187 against M.J.,'
a sixteen -year- old juvenile, based upon the alleged commission of two counts of
armed robbery ( counts one and two), violations of La. R.S. 14: 64, and illegal
possession of a handgun by a juvenile ( count three), a violation of La. R.S.
14: 95. 8. 2 M.J. filed a combined motion to suppress and, alternatively, motion in
limine to exclude the out-of-court and in -court identification of the accused. After
a hearing on the combined motion, the juvenile court denied the motion, proceeded
with the first day of a two- day adjudication hearing, and entered directed verdicts
finding M.J. not to be delinquent under counts one and three. On the second day
of the adjudication hearing, the juvenile court adjudged M.J. to be delinquent as to
count two. After a disposition hearing, M.J. was committed to the Department of
Public Safety and Corrections, Office of Juvenile Justice, for twenty- four months.
M.J. now appeals, arguing that the juvenile court erred in denying his motion to
suppress and/ or in limine to exclude the identifications and that the evidence is
insufficient to support the adjudication. After a thorough review of the record and
the two assignments of error, we affirm the adjudication and disposition.
STATEMENT OF FACTS
On October 5, 2019, around 10: 30 p.m., Carley Davis gave a ride to four
male youths after seeing them in front of the Belle of Baton Rouge Casino and
Hotel. Davis was driving, and her friend, Asia Nguyen,3 was in the passenger seat
1 M.J.' s date of birth is November 11, 2003. As a minor, he will be referred to by his initials to ensure his confidentiality. See Uniform Rules of Louisiana Courts of Appeal, Rule 5- 2. 2 The State filed a separate petition against another minor, T.B., alleging the commission of the same offenses alleged herein, based on the same event. Thus, the proceedings in both cases were combined. In T.B.' s case, the juvenile and the State filed appeals in this court. See State in Interest of T.B., 20- 0929 ( La. App. 1 st Cir. 3 Davis' s friend did not testify at the adjudication hearing. Davis was unable to pronounce Asia' s last name, and testimony presented by police officers in this case was inconsistent as to whether her last name was Nguyen or Naquin.
2 when they initially saw the four youths sitting outside of the hotel' s administration
building. As Davis was at a stop sign, the youths asked for a ride to the Choctaw
Drive and Scenic Highway area, and indicated that they would pay Davis gas
money in exchange for giving them the ride. Davis agreed and allowed the youths
to enter the backseat of the vehicle. The plans changed when the youths told Davis
that she could bring them to wherever she was headed that night instead and that
they would walk home from there. Davis testified that she, however, wanted to
bring them closer to their home, as they were " kids," and she did not " want them
to be out like that." She stated that she did not have a " bad vibe" and was only
expecting to give the youths a ride. She ended up taking them to a side street
behind a Dollar General store located off Mohican Street and Plank Road.
According to Davis, the youths were in her vehicle for at least fifteen minutes and
they talked the entire time. She testified that she traveled on River Road, a surface
street, as opposed to the interstate.
According to Davis, when they arrived at the parking lot of an abandoned
store behind the Dollar General store, she asked for the agreed upon gas money
and the youths were " hesitant about it." The youths began exiting her vehicle as
she was asking about the money, but unbeknownst to Davis, only three of the
youths exited her vehicle while one remained in the backseat " acting like" he was
sleeping. As Davis was pulling off, the three youths who had exited the vehicle
signaled for her to stop, one stating, " Hold on, my brother is in the car with you."
At that point, Davis turned around and realized that one of the youths was still in
her vehicle. When Davis slammed on her brakes to stop her vehicle, two of the
youths approached the vehicle, one approaching the passenger side where Nguyen
was seated, and the other approaching the driver' s door where Davis was seated.
The youth who approached the passenger side of the vehicle opened the door, put a
gun to Nguyen' s face, and snatched her bag. The other one then opened Davis' s
3 door and pressed a gun against her left arm. He leaned into the vehicle and took
Davis' s purse from the floor by the driver' s door and then leaned in again to take
her cell phone that was connected to the auxiliary cord. The youths then fled from
the parking lot.
Several officers with the Baton Rouge Police Department ( BRPD)
investigated the incident, including the lead investigator, Detective Justin Becnell.
Detective Becnell reviewed police reports from other investigating officers,
including the original offense report submitted by Officer James Crockett detailing
the statements provided by the victims on the night of the incident. Detective
Becnell noted that a series of robberies had been occurring in the area. After
reviewing other police reports and conducting a query in a law enforcement
database, he developed four suspects in this case, M.J., his brother D.J., T.B., and
J. J. Detective Becnell created four photographic arrays, including each suspect in
an array.
On October 17, 2019, the photographic lineups were presented to Davis, and
she identified M.J. and T.B.' On October 24, 2019, the suspects were arrested and,
according to Detective Becnell, J.J. confessed to his involvement but named as co-
perpetrators three other individuals who were not considered suspects in this case.
On February 5, 2020, the first day of the adjudication hearing, Davis again
identified M.J. and T.B. in court. She specifically identified M.J. as the person
who approached her side of the vehicle and stole her items at gunpoint and
identified T.B. as the person who approached and robbed Nguyen at gunpoint. On
the second day of the adjudication hearing, held on February 13, 2019, J.J. testified
that he did not recall his pre -hearing statement and indicated that viewing body -
4 From the photographic lineup that contained a photograph of D.J., Davis did not select the photograph of D.J. but instead selected a photograph of an unidentified male. Detective Becnell noted that the unidentified male had similar facial features and a similar hairstyle as D. J. Davis
did not select anyone from the photographic lineup that included a photograph of J. J.
M cam footage would not help refresh his memory. He testified that he had no
memory of the incident.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number two,5 M.J. argues that Davis' s out-of-court
and in -court identifications were suspect and should not, standing alone, support
an adjudication. He notes that the police did not find a weapon or any of Davis' s
property during a search of his home. He contends that the State offered no
corroboration other than the fact that when Davis recovered her cell phone, the
storage server had been renamed under M.J.' s nickname, Munchie Jones. M.J.
notes that one of the admitted perpetrators, J. J., provided other names as co-
perpetrators. M.J. also notes that the perpetrators named by J. J., one of whom he
claims resembles him, were not included in the photo lineup. The juvenile further
notes that in State v. Jones, 94- 1098 ( La. App. 1 st Cir. 6/ 23/ 95), 658 So. 2d 307,
writ denied, 95- 2280 ( La. 1/ 12/ 96), 666 So. 2d 320, this court set aside the
conviction based on a violation of due process caused by the single -photo
identification in that case, although the defendant' s sufficiency of the evidence
claim was rejected therein. M.J. argues that this court should likewise set aside his
adjudication based on a due process violation.
5 When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first address whether there is sufficient evidence to convict or adjudicate because the lack of sufficient evidence to sustain the adjudication would entitle the juvenile to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 44- 45, 101 S. Ct. 970, 973, 67 L.Ed.2d 30 ( 1981). State in Interest of E. S., 18- 01763, p. 10 ( La. 10/ 22/ 19), 285 So. 3d 1046, 1054 n. 15.When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. See State v. Hearold, 603 So. 2d 731, 734 ( La. 1992).
5 In a juvenile adjudication proceeding, the State must prove beyond a
reasonable doubt that the child committed a delinquent act alleged in the petition.
La. Ch. C. art. 883. The burden of proof, beyond a reasonable doubt, is no less
severe than the burden of proof required in an adult proceeding. State in Interest
of D.L., Jr., 17- 0891, p. 6 ( La. App. 1st Cir. 11/ 1/ 17), 233 So. 3d 671, 676.
Accordingly, in delinquency cases, the standard of review for the sufficiency of
evidence is that enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 27891 61 L.Ed.2d 560 ( 1979), i. e., whether viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
State proved the essential elements of the crime beyond a reasonable doubt. See
La. C. Cr.P. art. 821( B); State v. Ordodi, 06- 0207, p. 10 ( La. 11/ 29/ 06), 946 So. 2d
654, 660. The Jackson standard is an objective standard for testing the overall
evidence, both direct and circumstantial, for reasonable doubt. When analyzing
circumstantial evidence, La. R.S. 15: 438 provides that, assuming every fact to be
proved that the evidence tends to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence. State ex rel. D.F., 08- 0182, p. 5 ( La. App. 1 st
Cir. 6/ 6/ 08), 991 So. 2d 1082, 1085, writ denied, 08- 1540 ( La. 3/ 27/ 09), 5 So. 3d
138.
Armed robbery is the taking of anything of value belonging to another from
the person of another or that is in the immediate control of another, by use of force
or intimidation, while armed with a dangerous weapon. La. R.S. 14: 64( A). The
State bears the burden of proving the elements of the charged offense, as well as
the identity of the defendant as the perpetrator. See State v. Drain, 05- 1825, p.
8 ( La. 1/ 17/ 07), 950 So. 2d 583, 593, cert. denied, 552 U.S. 1012, 128 S. Ct. 537,
169 L.Ed.2d 377 ( 2007). Here, M.J. does not argue the State failed to prove a
crime occurred, but rather contends his identity as one of the perpetrators was not
proven beyond a reasonable doubt.
Cel When the key issue is the defendant' s identity as the perpetrator, rather than
whether the crime was committed, the State is required to negate any reasonable
probability of misidentification. State in Interest of T.H., Jr., 11- 2208 ( La. App.
1st Cir. 6/ 7/ 13), 2013 WL 2487573, at * 2. The trier of fact, in this case, the
juvenile court, is charged with making credibility determinations. Credibility
determinations, as well as the weight to be attributed to the evidence, are soundly
within the province of the fact finder. Moreover, conflicting testimony as to
factual matters is a question of weight of the evidence, not sufficiency. Such a
determination rests solely with the trier of fact who may accept or reject, in whole
or in part, the testimony of any witness. State in Interest of T.C., 18- 1246, pp. 4- 5
La. App. 1st Cir. 12/ 21/ 18), 269 So. 3d 716, 719.
Because a review of the law and facts in a juvenile delinquency proceeding
is constitutionally mandated, an appellate court must review the record to
determine if the juvenile court was clearly wrong in its factual findings. See La.
Const. art. 5, § 10; T.C., 18- 1246 at 5, 269 So. 3d at 719- 20. In a juvenile case,
when there is evidence before the trier of fact that, upon its reasonable evaluation
of credibility, furnished a factual basis for its finding, on review the appellate court
should not disturb this factual finding in the absence of manifest error. Reasonable
evaluations of credibility and reasonable inferences of fact should not be disturbed
upon review. State in Interest of D.M., 17- 1418, p. 6 ( La. App. 1st Cir. 2/ 21/ 18),
2018 WL 1007352, at * 3.
Early on in his investigation, Detective Becnell learned that M.J., D. J., and
T.B. lived in Spanish Arms Apartments, located at 4343 Denham Street, and that
J. J. lived near the complex. The apartment complex was located less than a mile
from the parking lot where the robbery took place. On October 17, Detective
Danny Forbes administered the four photographic arrays created by Detective
Becnell, at which point Davis positively identified M.J. and T.B. Detective
7 Becnell also interviewed Davis that day. Following his investigation, on October
24, 2019, Detective Becnell arrested M.J., T.B., and J. J. and executed search
warrants at the apartments of the parents of M.J. and T.B. in Spanish Arms, but did
not locate any potential firearm used in this case. 6
Detective Becnell testified that J. J. confessed after his arrest but named three
other individuals as co -perpetrators who were not considered suspects in this case,
including twin brothers with identical initials of J.C. Detective Becnell further
testified that the names provided by J.J. were inconsistent with the information
provided by Davis. The officers attempted to ascertain whether the individuals
named by J. J. were involved in this case but found no evidence to suggest that they
were involved. Detective Becnell noted that the twins were present at Spanish
Arms at the time of the arrest of the suspects in this case and/ or the execution of
the search warrants. He noted that T.B. was much larger and taller than the twin
brothers, and T.B.' s hair was clearly distinguishable as it fell over his eyes and
face. He also noted that M.J. was more of a " heavy set build." He recalled other
discrepancies including drastic differences in appearances, noting that the twins
were thin and lean and muscular for their age but did not appear to have yet
reached puberty. He further noted that their skin tone was noticeably darker than
M.J.' s skin tone.
During his testimony at the adjudication hearing, J. J. confirmed his
appearance in body -cam footage, but repeatedly indicated that he did not recall any
previous statements or previously naming any individuals. When asked if he had
absolutely no memory of this, he stated, " No memory." As he continued to evade
questioning, he began to repeatedly respond, " I plead the fifth."
6 Detective Becnell testified that while they did not recover a firearm, they located a magazine that belonged to a firearm that was not located. Davis confirmed that it was dark when she picked up the four youths, but
also confirmed that she was able to see them in her rearview mirror, and noted that
the route she took had a lot of streetlights. She described herself as " a very good
multitasker" and contended that she kept her eyes on the youths and on the road
for her safety. Davis noted that during the ride, she allowed one of the youths to
use her cell phone, as he indicated that he wanted to call his mother. Davis also
noted that one of the youths gave her an Instagram account name so that they
could arrange to " hang out."
Davis also testified about how she observed M.J. and T.B. individually
during the robberies. First, she observed T.B. as he opened the passenger door and
snatched" Nguyen' s bag. She then observed M.J. as he subsequently approached
the driver' s door, " snatched" it open, " snatched" Davis' s purse, and then " doubled
back" and " snatched" Davis' s phone from the auxiliary cord. She described the
gun held against her arm as black, adding, " Like a regular clip, maybe a nine or
something." She further confirmed that she believed it was a real gun.
In the moments following the robbery, Davis initially drove away from the
parking lot to seek help from a friend and then decided to drive back to the scene
to see if any of her belongings had been dropped. She thereafter proceeded down
Plank Road, in the direction that the youths were running when she last saw them.
She located them at a gas station on Evangeline Street and Plank Road and chased
them in her car across the parking lot. She followed them for about five blocks,
exited her vehicle, and chased one of them by foot with a hammer. Davis testified
that the youth she chased on foot was not in the courtroom at the time of the
hearing, but she noted that he " favors" M.J. and was dressed similarly. Davis was
unable to catch up with the unidentified youth and immediately went back to her
car when she heard one of the other youths fire a gun. She noted that Nguyen had
called the police while she was driving and remained on the phone with them.
E Davis testified that while she did not know them personally, she had seen the four
youths prior to the night in question at teen " parties and stuff." Davis also testified
that she previously lived in Spanish Arms Apartments. Davis testified that she
was able to obtain their " government names" from someone who lived in the area
where she believed the youths lived and obtained at least one group photograph of
them before her phone was recovered.
The next day, on October 6, 2019, Davis called the police after tracking the
location of her cell phone and determining that it was at Spanish Arms
Apartments. Corporal David Bourque and Corporal J. Hollis of the BRPD initially
met Davis at the McDonald' s near the apartment complex and then proceeded to
Spanish Arms Apartments. About fifteen to thirty minutes after the officers met
with Davis and unsuccessfully looked for her phone, someone contacted Davis and
left her and Nguyen' s phones at a gas station a block away from the McDonald' s
and the apartments. She noted that when she retrieved her phone, things were
erased from the phone and the name in the phone, under an email account, was
changed to " Munchie Jones." Davis confirmed that she was able to find the four
youths on Instagram.
Davis further confirmed that on October 7, the day after she met with
Corporal Bourque and Corporal Hollis, she obtained additional photographs of the
youths. She testified, " The next day I had my own pictures I got cause 1 knew
what they looked like." Davis confirmed her participation in the pre -hearing
photographic lineups conducted by Detective Forbes on October 17 and identified
M.J. in court as the person who opened the driver' s door and took her items at
gunpoint, followed by her in -court identification of T.B. Davis confirmed that she
was confident that the two individuals identified in the photographic lineups and
again in court were the two who reapproached her car armed with guns.
10 A trier of fact' s determination as to the credibility of a witness is a question
of fact entitled to great weight, and its determination will not be disturbed unless it
is clearly contrary to the evidence. In the absence of internal contradictions and
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support an adjudication. T.C., 18- 1246
at 5, 269 So. 3d at 719. Based on our review of the record, we cannot say that the
juvenile court was clearly wrong in its factual findings. Unlike the situation before
this court in Jones, 94- 1098 at 6- 7, 658 So. 2d at 311- 12, the victim in this case
was not shown a single photograph of M.J., but instead selected M.J. from an
assembled photographic lineup. While Davis had viewed photos prior to the
lineup, her testimony showed that her identification of M.J. and T.B. was based on
her ability to closely view them on the night in question.
Considering the totality of the circumstances, we find that the evidence
presented in this case would support a rational fact finder' s conclusion that M.J.
took Davis' s items at gunpoint in this case. Viewing the evidence in the light most
favorable to the prosecution, we find that any rational trier of fact could have
found beyond a reasonable doubt and to the exclusion of every reasonable
hypothesis of innocence that M.J. was guilty of armed robbery. Thus, after
undertaking the constitutionally -mandated review of the law and facts, we find no
manifest error by the juvenile court in its adjudication. Assignment of error
number two lacks merit.
MOTION TO SUPPRESS IDENTIFICATION
In assignment of error number one, M.J. contends that the juvenile court
erred in denying his motion to exclude the identifications. He challenges the out-
of-court identification based on the following five factors: ( 1) opportunity to view,
2) attention, ( 3) accuracy of prior description, ( 4) certainty, and ( 5) time. He
argues that Davis' s research on social media and conversations with unidentified
11 sources concerning the possible identity of suspects had a " corrupting effect" on
the subsequent lineup and in -court identification. M.J. argues that there is a " real
possibility" that Davis' s recollection of him was derived from the Instagram
photograph rather than the nighttime encounter. He argues that the likelihood of
misidentification in this case denied him his right to due process.
M.J. contends Davis admitted she did not turn around to look at the
perpetrators in the backseat. He argues Davis could not have had a clear view of
the four youths in the backseat while she was driving or in the dark parking lot.
M.J. claims that Davis was not paying attention to the youths as she was driving,
as they exited her vehicle, or when they were in the parking lot. He claims Davis
had no independent recollection and had to look at photographs in her phone to
describe the youths the day after the offense. M.J. further contends Davis did not
provide a specific description of the robbers and notes that she misidentified one of
the suspects in the lineup. M.J. notes months elapsed between the robbery and the
adjudication hearing.
M.J. also contends there is a " reasonable probability" that the three youths
identified by J. J., including the J. C. twins, were the actual robbers in this case.
M.J. contends he was misidentified as a perpetrator in an unrelated series of thefts
and robberies in the area, but a surveillance video showed that one of the twins,
who M.J. says resembles him, was the actual robber in that case.' M.J. contends
that there is a " reasonable possibility" that one of the twins stored his nickname in
the victim' s phone in this case to frame him. He further contends he was denied
the opportunity to show that there was a " very real possibility" of
At the adjudication hearing, Detective Jerry Johnson of the BRPD confirmed that M.J. was identified in a photo -lineup in an unrelated investigation of a theft at a Boost Mobile store. As Detective Johnson further testified, surveillance footage showed that M.J. was not involved in that incident, had been misidentified, and that J. C., one of the twins referenced above, committed that theft alone. However, it was confirmed that M.J. and J. J. were in the store with J. C. prior to the theft and that the owner saw all of them while they were in the store.
12 misidentification, as the juvenile court did not allow testimony by Davis at the
suppression hearing.
Generally, the defendant has the burden of proof on a motion to suppress an
out-of-court identification. La. C. Cr.P. art. 703( D). To suppress an identification,
a defendant must first prove that the identification procedure was suggestive. An
identification procedure is suggestive if, during the procedure, the witness' s
attention is unduly focused on the defendant. State in Interest of E.R., 09- 0756
La. App. 1st Cir. 12/ 23/ 09), 2009 WL 4981461, at * 3. The question for a
reviewing court is to determine whether the procedure is so conducive to
irreparable misidentification that due process was denied. Manson v. Brathwaite,
432 U.S. 98, 120, 97 S. Ct. 2243, 2256, 53 L.Ed.2d 140 ( 1977) ( citing Stovall v.
Denno, 388 U.S. 293, 301- 02, 87 S. Ct. 1967, 1972, 18 L.Ed.2d 1199 ( 1967)); See
State v. Martin, 595 So. 2d 592, 595 ( La. 1992); State v. Prudholm, 446 So. 2d
729, 738 ( La. 1984).
Even when suggestiveness of the identification process is proven by the
defendant or presumed by the court, the defendant must also show there was a
substantial likelihood of misidentification as a result of the identification
procedure. State v. Higgins, 03- 1980, p. 19 ( La. 4/ 1/ 05), 898 So. 2d 1219, 1233,
cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L.Ed.2d 187 ( 2005); E. R., 2009 WL
4981461, at * 3. The Supreme Court in Manson, 432 U.S. at 116, 97 S. Ct. at 2254,
held that despite the existence of a suggestive pretrial identification, an
identification may be permissible if there does not exist a " very substantial
likelihood of irreparable misidentification." Under Manson, the factors that courts
must examine to determine from the totality of the circumstances whether the
suggestiveness presents a substantial likelihood of misidentification include: 1) the
witness' s opportunity to view the criminal at the time of the crime; 2) the witness' s
degree of attention; 3) the accuracy of his prior description of the criminal; 4) the
13 level of certainty demonstrated at the confrontation; and 5) the time between the
crime and the confrontation. Manson, 432 U.S. at 114, 97 S. Ct. at 2253.
A juvenile court' s determination of the admissibility of an identification
should be accorded great weight and will not be disturbed on appeal unless the
evidence reveals an abuse of discretion. See E.R., 2009 WL 4981461, at * 5.
Likewise, when a trial court denies a motion to suppress, factual and credibility
determinations should not be reversed in the absence of a clear abuse of the trial
court' s discretion, i.e., unless such ruling is not supported by the evidence. See
State v. Green, 94- 0887, p. 11 ( La. 5/ 22/ 95), 655 So. 2d 272, 280- 81. However, a
trial court' s legal findings are subject to a de novo standard of review. State v.
Hunt, 09- 1589, p. 6 ( La. 12/ 1/ 09), 25 So. 3d 746, 751. In determining whether the
ruling on the motion to suppress was correct, we are not limited to the evidence
adduced at the hearing on the motion. We may consider all pertinent evidence
given at the trial of the case. State v. Chopin, 372 So. 2d 1222, 1223 n.2 ( La.
1979); State in Interest of T.O. T., 15- 0611 ( La. App. 1st Cir. 9/ 21/ 15), 2015 WL
5546724, at * 3.
Herein, at the hearing on the motion to suppress, Officer Crockett testified
that Davis was not looking at her phone when she provided a description of the
perpetrators on the date of the incident. Davis specifically described the
perpetrators as African American teenagers between the ages of fourteen and
eighteen and further noted that one of them was tall and slender, while some of
them ranged from short to tall. When Davis met Corporal Bourque and Corporal
Hollis at McDonald' s the next day, she informed Corporal Bourque that she had a
photograph of the juvenile defendants in this case.
Regarding the photographic lineup on October 17, while Detective Becnell
was the lead investigator, administering the lineup was Detective Forbes only
involvement in this case. Detective Becnell testified that prior to the lineup, Davis
14 reportedly obtained the identity of the suspects from members of the community and social media. Detective Becnell confirmed that under BRPD general policy
orders, witnesses should not be permitted to see or be shown any photos of the
suspect prior to the lineup. Detective Becnell further confirmed that he understood
the policy to mean that he is not allowed to show witnesses photos of the suspect
prior to the lineup. However, he noted that if a witness chooses to do so on their
own, he would not be able to prevent it. He added, " Obviously, in an effort to be
fair and unbiased, I would encourage the victims not to do their own investigatory
work, to let me follow leads and then to contact them."
Dectective Becnell confirmed that he did not show Davis a photograph of
M.J. or T.B. prior to the lineup. Davis was shown four six -person photograph
arrays. Regarding his selection of photographs for the arrays, Detective Becnell
specifically testified:
It was important for us to make sure that all the photos did not appear unnecessarily suggestive and that they looked the same. We made sure that all the individuals in each sequence of photographic lineups, whether it was one defendant, had similar hair, similar skin tone, the size of the picture was encouraged to be the same. We didn' t want
any markings, any numbers, any other differences in the styles of the photos. It was important that they were consistent.
Detective Becnell and Detective Forbes testified that they did not suggest anyone
to Davis during the lineup procedure. Detective Becnell confirmed that Davis
selected the juvenile in this case, M.J., from Lineup Number 1. Detective Becnell
further confirmed that Davis selected, from Lineup Number 2, an individual that
was not, by any other indication, involved or considered a suspect in the instant
case. 8
In denying the motion to suppress/ motion in limine, the juvenile court noted
that Davis provided descriptions of the perpetrators on the day of the incident and
8 As previously noted herein, at the adjudication hearing, Detective Becnell confirmed that Davis selected co- defendant T.B. from Lineup Number 3 and did not make a selection from Lineup Number 4.
15 the following day. Subsequently, the victims did their own investigation and were
able to obtain photos of individuals that they believed to be the suspects who
robbed them. The court noted that according to the officers' testimony, they did
not provide or show the victims any photographs outside of the lineup
photographic arrays or make any suggestions to the victims. The court further
noted that the victims were not persuaded or influenced in anyway by Detective
Becnell and that Detective Forbes had no prior knowledge or involvement in the
case. The court also recalled testimony indicating that the photographic lineups
featured individuals of similar features, skin tone, and hair, and that there was
nothing that would cause a photograph to standout or cause the procedure to be
suggestive. The court concluded that the officers did not violate their policy or
conduct a suggestive identification procedure.
In State in Interest of E.R., one of three victims of an armed robbery in that
case identified E.R. as the robber in a photographic lineup. All three of the victims
later appeared for a scheduled adjudication hearing. At some point, the victims
were asked to wait outside the courtroom. As the three victims sat outside the
courtroom, they all observed E.R. walk into the courtroom wearing leg shackles
and clothes from the juvenile detention center. Because one of the State' s
witnesses was unable to testify at the adjudication hearing, the State obtained a
continuance. Subsequently, a motion to suppress identification was filed on behalf
of E. R., seeking to suppress any identifications of E.R. by the victims during and
subsequent to the date of the " staged viewing" where the witnesses observed E.R.
being escorted into the courtroom. E. R., 2009 WL 4981461, at * 2- 3.
Therein, this court noted that the jurisprudence indicates that when an
immediate and definite identification results from inadvertent meetings between
the victim and the suspect, and there is no indication of impropriety or
suggestiveness, an out-of-court identification will be found both reliable and
16 admissible. E. R., 2009 WL 4981461, at * 3; State v. Johnson, 94- 1561, p. 7 ( La.
App. 1st Cir. 10/ 6/ 95), 664 So. 2d 141, 145, writ denied, 95- 2988 ( La. 3/ 15/ 96),
669 So. 2d 426. After consideration of the evidence under the Manson factors in
that case, this court was unable to say the defense established there was a
substantial likelihood of irreparable misidentification. E.R., 2009 WL 4981461, at
5. This court, in part, noted that one of the victims testified that he was " certain"
that E. R. was the person who robbed him, while the other testified that because
E.R. was pointing a gun at him during the robbery, he would " forever remember
that face." E.R., 2009 WL 4981461, at * 4.
In this case, we agree with the juvenile court in that there is no indication of
impropriety or suggestiveness in police procedure in conducting the lineup. Thus,
the identification was properly found both reliable and admissible. Even assuming
that Davis' s opportunity to view photographs of who she believed to be the
perpetrators prior to the lineup rendered the subsequent lineup suggestive, M.J.
still had to establish that there was a likelihood of misidentification in this case.
At the adjudication hearing, Davis testified that she got a good look at all
four perpetrators in her rearview mirror as she was driving. She further testified
that she was able to get a good look at both of the armed individuals who
reapproached her vehicle after she dropped them off in the parking lot and
identified M.J. in court as the one who approached her side of the vehicle. Davis
testified that after T.B. snatched Nguyen' s bag, M.J. " snatched open" her door and
pressed a gun against her left arm. She noted, " It was like 15 seconds back to
back." Further, regarding Davis' s opportunity to see M.J. when he reapproached
her vehicle, she was questioned as follows during direct examination by the State
at the adjudication hearing:
Q. ... All right. Let me start with, first, did you get a good look at the person that snatched your car door open?
17 A. Yes.
Q. And how far would you say they were from you?
A. Enough arm length for the gun to be to us and them that far away.
Q. Okay. And once this person held the gun on you, what did he do?
A. He snatched my purse and then doubled back and snatched my phone off the aux cord.
Q. And was your purse in your lap or?
A. It was on the floor by my door.
Q. So, Carley, did he have to lean into the car --
A. Yes.
Based on her testimony, Davis had a significant amount of time to view and
paid adequate attention to M.J. She was initially able to view him while he was in
the backseat of her car, and again when he reapproached her car and opened the
driver' s door where she was sitting, put the gun to her arm, and leaned into the car
twice, first to grab her purse and second to grab her phone. While her description
prior to the lineup may have been somewhat general, she seemed to have a certain
recollection of the juvenile from the night in question before subsequently seeking
his name and photograph. Only twelve days elapsed between the incident in
question and the photographic lineup in which Davis positively identified the
juvenile. Thus, based on the record, we cannot say the defense established that
there was a substantial likelihood of misidentification. We find no abuse of
discretion in the denial of the motion to suppress and, alternatively, motion in
limine to exclude Davis' s out- of-court and subsequent in -court identification of
M.J. Assignment of error number one lacks merit.
ADJUDICATION AND DISPOSITION AFFIRMED.
18 STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KI 0928
IN THE INTEREST OF M. J.
McClendon, J., concurring. U 1 1c, Based on the totality of the record, I concur in the result reached by the
majority.