STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-797
STATE OF LOUISIANA
VERSUS
DAVID BILLY PARKER, JR.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 6566-16 HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
AFFIRMED IN PART, AMENDED IN PART, VACATED IN PART, AND REMANDED.
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 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.1 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
1 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.
2 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
3 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
4 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
5 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.
6 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 (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
7 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
8 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.”
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
9 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?
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?
Q. They asked you to identify that photo?
A. Right.
Q. And you knew that was – you picked [Defendant’s] photo?
Q. And you identified him here in court?
10 Q. And that’s why you were called as a witness?
Q. And that photo array – that photo that you saw, that was the first time that anybody showed you a photo in this investigation?
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?
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
11 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
12 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 (1963) was
13 elicited during the meetings with the witnesses, conducted separately from each
other.
Applying the five-factor test of Manson, 432 U.S. 98, 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
14 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.2
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.
2 Defendant did not allege insufficiency of the evidence as an assignment of error on appeal.
15 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.3
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.
3 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.
16 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
17 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.
18 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.