State of Louisiana v. Kerric Brown

• Court: Louisiana Court of Appeal
• Decided: January 29, 2020
• Docket: 2019-KA-0416
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2019-KA-0416

VERSUS * COURT OF APPEAL KERRIC BROWN * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 527-162, SECTION “D” Honorable Paul A Bonin, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)

Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu CHIEF OF APPEALS Irena Zajickova ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS 619 S. White Street New Orleans, LA 70119 COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Meghan Harwell Bitoun Louisiana Appellate Project P. O. Box 4252 New Orleans, LA 70178-4252 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

JANUARY 29, 2020 Kerric Brown appeals his conviction on one count of armed robbery with a

firearm (La. R.S. 14:64.3), one count of second degree kidnapping (La. R.S.

14:44.1), and one count of aggravated battery (La. R.S. 14:34). For the reasons

that follow, we affirm the convictions.

PROCEDURAL BACKGROUND:

On November 13, 2015, Brown was charged by bill of information with two

counts of armed robbery with a firearm, one of Steve Martin and one of Mia

Carey; one count of aggravated burglary; and two counts of second degree

kidnapping, one of Steve Martin and one of Mia Carey.

A bench trial was commenced on December 17, 2018, wherein Brown was

tried on the charges of armed robbery with a firearm, aggravated battery, and the

second degree kidnapping of Mia Carey. He was found guilty as charged. The

trial court subsequently denied Brown’s motions for a new trial and for post-

verdict judgment of acquittal.

1 Sentencing took place on January 11, 2019. The trial court sentenced

Brown, with respect to the armed robbery with a firearm, to serve twenty years,

without benefit of probation, parole or suspension of sentence, with an additional

five years pursuant to La. R.S. 14:64.3, to be served consecutively with the twenty

years. With respect to the second degree kidnapping conviction, Brown was

sentenced to serve twenty-five years, with two years to be served without benefit

of probation, parole or the suspension of sentence, with credit for time served.

Finally, with respect to the conviction for aggravated battery, Brown was

sentenced to serve eight years with credit for time served. All sentences were to

run concurrently; however, the court specified that they were to run consecutively

with a sentence imposed by the court in an earlier, unrelated proceeding.

The State notified the trial court of its intention to file a bill charging Brown

as a multiple offender; however, prior to the hearing on the multiple bill, Brown’s

motion for appeal was filed and granted.

FACTS:

Mia Carey testified that on May 3, 2015, she and her boyfriend, Steve

Martin, drove Martin’s cousin, Raychad Newton, to an apartment in eastern New

Orleans. Newton had asked for a ride to drop something off at his uncle’s

apartment. Carey testified that she and Martin waited in her car while Newton

went upstairs. Shortly thereafter, a man approached the car and asked to use

Carey’s cellphone. After handing him the phone, he pointed a gun in her face and

ordered her out of the car. He then went to the passenger side and ordered Martin

2 at gunpoint to get out of the car, and ordered the two to go up the stairs of the

building. On the way up, another man that Carey described as the gunman’s

“friend,” passed them and ordered them not to look at him. The gunman and his

“friend” drove away in Carey’s car.

Carey and Martin proceeded to the apartment that Newton had entered

earlier. She testified that they found Newton naked on the floor covered in blood,

apparently having been stabbed numerous times. She and Martin went to Martin’s

cousin’s apartment and called the police.

Carey testified that in September of 2015, she and Martin went to the police

station with an Instagram photo Martin had obtained from a friend. She said the

photo was of the man who had pointed the gun in her face and another unknown

person. They gave the Instagram photo to the detective. Several days later, she

was called back to the station and asked to pick the gunman from a photo line-up.

She testified that there was one man who had the same eyes and bridge of the nose

as the gunman, but she could not positively identify him as the man who pointed

the gun at her. She admitted on cross-examination that she did not tell the police

on the day of the incident that the gunman had a cross tattooed in the middle of his

forehead; however, she did tell the detective who showed her the lineup. She

further explained that the tattoo on the defendant’s forehead was clearer in the

Instagram photo.

Raychad Newton testified that on May 3, 2015, he went to his uncle’s

apartment to deliver marijuana. Newton identified Brown as the man who was in

3 his uncle’s apartment when he arrived. As he handed his uncle the marijuana, he

turned towards Brown who hit him with a gun. He testified that he and Brown

“tussled” over the gun, with Newton gaining possession of it. Newton testified that

Brown’s friend, whom he described as having dreadlocks, went to the kitchen,

returned and proceeded to stab Newton numerous times in his back and head. This

caused Newton to release his grip on the gun. Brown then kicked him and ordered

him to strip to naked, and told him to “put your ass in your uncle’s face.”

Newton testified that after he complied, Brown asked him how he got to the

apartment. Newton testified that he was evasive about how he got to the apartment

because he was afraid for his cousin. Brown left the apartment and returned a few

minutes later with Carey and Martin. Brown then left the apartment with his

accomplice. Newton then called 911.

Detective Matthew Riffle of the New Orleans Police Department testified

that he became involved in the case when Carey and Martin came to the Seventh

District headquarters on September 3, 2015 with an Instagram photo of the

defendant. They told him that one of the people in the photo, who they said was

nicknamed “K.K.,” was the person who had kidnapped and robbed them at

gunpoint on May 3, 2015.

After Carey and Martin left the station, Detective Riffle ran the nickname

through a “Field Interview Cards” database1 and had one result, the defendant,

1 A database that comprises photographs and information on persons stopped by police for suspected criminal violations.

4 Kerric Brown. He then compared a booking photograph of Brown, who was at

that time in police custody, with the Instagram photo which was a perfect match.

Detective Riffle testified that he thereafter compiled a “six-pack”

photographic lineup and asked Carey and Martin to return, which they did on

September 15. Two different police officers presented the line-ups to the victims

separately. Carey, although noting that the picture of one person (Brown) had the

same eyes and bridge of the nose as the man who pointed the gun at her, could not

make a positive identification. Martin, on the other hand, positively identified

Brown as the man who had robbed him.

On cross-examination, Detective Ripple explained that Carey and Martin

told him the Instagram photo came from a neighbor, who, after hearing about the

incident and having the victims describe the gunman, told them it sounded like a

man named “K.K.”

The judge also questioned Detective Ripple about the sequence of events,

the different line-ups, and about the second robber involved in the May 3 incident.

Detective Ripple explained that Carey’s car was found on May 4, and a man

named Christopher Payton was arrested for the theft. The detective thought that

Payton could have been the second robber from the May 3 incident. However,

when Martin was presented with a line-up including Payton’s picture, Martin

selected a “filler”2 picture of a man named Reginald Vincent. Vincent was not a

suspect.

2 A “filler” picture in a police photo line-up is a picture of a person who is not a suspect.

5 DISCUSSION:

We have reviewed the record for errors patent, and find none.

When the sufficiency of the evidence to convict is raised as error on appeal,

it is well settled that the reviewing court should first review the record to determine

the sufficiency of the evidence. See State v. Miner, 14-0939, p. 5 (La.App. 4 Cir.

3/11/15), 163 So.3d 132, 135.

We review a claim of insufficiency of the evidence as set forth in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979):

…the relevant question 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 beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved though a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (emphasis in original; internal quotations omitted.)

In this case, Brown does not argue that the trial testimony was insufficient to

support the elements of the crimes charged. Rather, he claims that the testimony

identifying him was insufficient to prove he was the perpetrator.

“[W]hen 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 v. Weary, 03-3067, p. 18 (La.

4/24/06), 931 So.2d 297, 311, quoting State v. Neal, 00-0674, p. 11 (La. 6/29/01),

6 796 So.2d 649, 658. A “positive identification by only one witness is sufficient to

support a conviction.” Id.

Despite the strong in-court identifications, Brown nonetheless argues that

the police failed to follow up on two other possible perpetrators discovered during

the investigation. Christopher Payton was the man who was found in possession of

Carey’s vehicle the day after the incident. Detective Ripple included a picture of

Payton in the photographic line-up shown to Steve Martin, but Martin failed to

identify him as the second perpetrator. The detective did not show this line-up to

Carey, as she had indicated that she did not see the face of the second perpetrator at

all. When Martin did not identify Payton as being the other person involved in the

incident, the detective did not pursue him as a possible suspect.

Martin did pick a man, Reginald Vincent, out of the photographic lineup as

possibly being the second perpetrator. The detective did not follow up on this

identification as Martin had explained that he only saw “half of the suspect’s face”

as they passed on the stairs, and there was no other evidence to link Vincent to the

crime.

Brown also argues that Carey could not pick him out of the photographic

line-up. What Brown ignores is the fact that Carey positively identified him at

trial, both at a distance and once he was brought closer to her on the stand. Also,

Carey did in fact note that a man in the lineup (Brown) had the same eyes and

bridge of the nose as the man who pointed the gun in her face. She hesitated to

7 positively identify Brown because she was not absolutely certain. There was no

uncertainty in her identification at trial.3

Brown also challenges the use of the Instagram photograph supplied by a

neighbor/friend of Carey and Martin’s. He argues that it was not established how

Carey and Martin came to possess the photograph. The record reveals that Martin

explained to the detective that he described the perpetrator to this neighbor/friend,

who produced the picture of Brown.

Brown also challenges Newton’s identification of him, arguing that Newton

never picked him out of a lineup. While this is true, the fact is of no moment as

Newton positively identified Brown at trial. Newton was confronted face-to-face

by Brown, they fought over a gun, and Newton was made to strip naked at

Brown’s command. Newton’s identification at trial was unequivocal.

Thus, the trial court heard the testimony of the two witnesses and witnessed

their positive identification of Brown at trial. The record is clear that there was

sufficient, positive identification of Brown as the perpetrator in this case.

Brown challenges in a separate assignment of error, the in-court

identifications by Carey and Newton. He argues that the trial court should have

denied the State’s request to have Brown brought closer to Carey in the courtroom.

The State’s request was made so that Carey could see Brown at the same distance

he was from her when he pointed the gun in her face. He argues that Carey was

not able to identify him from the stand to where he sat in the courtroom. This is

3 Martin, although not called to testify at trial, did positively identify Brown in the photographic lineup.

8 inaccurate. Carey identified Brown as he was seated at the defense table, and

confirmed the identification when he was brought closer.

Louisiana Code Criminal Procedure art. 703 D provides that the defendant

bears the burden of proving that an identification should be suppressed. The

defendant must first prove that the identification procedure was unduly suggestive.

If he carries his initial burden, the defendant must then prove that the unduly

suggestive procedure created “a very substantial likelihood of irreparable

misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254

(1977); see also State v. Leger, 05-0011, p. 59 (La. 7/10/06), 936 So.2d 108, 151

(quoting Manson, supra). The standard for review of a trial court’s ruling on an

identification is abuse of discretion. State v. Bickham, 404 So.2d 929, 934 (La.

1981). As this was a challenge to an identification during the course of the trial, no

motion to suppress was filed. Rather, the defense objected to Carey’s

identification, and the trial court overruled the objection.

In addition to objecting to the identification, Brown also had the benefit of

cross-examining the witnesses who identified him. Generally, the opportunity to

cross-examine a witness about his in-court identification of the defendant will cure

any suggestiveness of such identification. State in the Interest of D.S., 18-0458, p.

6 (La.App. 4 Cir. 10/3/18), 255 So.3d 1209, 1213, citing State v. Laster, 44,870, p.

11 (La.App. 2 Cir. 2/3/10), 33 So.3d 259, 267.

When weighing the effect of an arguably suggestive identification, courts

consider five factors: 1) the opportunity of the witness to view the criminal at the

9 time of the crime, 2) the witness’ degree of attention, 3) the accuracy of the

witness’ description of the criminal, 4) the level of certainty demonstrated by the

witness at the confrontation, and 5) the length of time between the crime and the

confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382 (1972).

Brown relies heavily on the fact that Carey could not identify him in the

photographic lineup, yet positively identified him at trial. Again, it is not entirely

accurate that Carey did not select Brown from the photographic lineup. In fact,

Carey did note that one of the men in the lineup had the same eyes and bridge of

the nose as the man who pointed a gun in her face. She did not, however,

positively identify Brown from that photo. Carey did positively identify Brown as

the perpetrator in the Instagram photo, which she explained was a clearer picture.

At trial, she identified Brown as he sat at the defense table and when he was

brought closer. Although trial of this matter was approximately four years after the

incident, her identification of Brown from the Instagram photo was only four

months after the crime.

On appeal, Brown also challenges Newton’s in-court identification.

However, there was no objection raised at the trial; therefore, he cannot raise the

identification as error for the first time on appeal. La. Code Cr. Proc. art. 841 A;

State v. Hill, 16-0123, p. 10 (La.App. 4 Cir. 6/1/16), 194 So.3d 1262, 1268.

Brown argues that the trial court erred in not granting him a new trial

because the State withheld evidence. Specifically, Brown asserts that the State was

required to notify him of the fact that Brown identified himself during the crime.

10 La. Code Cr. Proc. art 716 C obligates the State to provide defendant with the

substance of any oral statement made by the defendant which the State intends to

offer at trial.

During questioning by the judge at trial, Newton was asked why he referred

to the defendant as “K.K.” Newton replied that “K.K.” was Brown’s nickname.

The judge asked Newton if he knew Brown prior to this incident, to which Newton

explained he did not; however, Brown referred to himself as “K.K.” when he was

beating Newton with the gun and accusing Newton of having hit Brown’s brother

with a gun. Brown argues that if he had known of Newton’s testimony, he could

have impeached him because Brown’s only brother had been incarcerated since

2007. It was thus impossible for Newton to have had contact with Brown’s brother

in the recent past. Brown argues that the State withholding this information was a

violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972), which held

that the prosecution is bound to give impeachment evidence to an accused.

For the State to be bound by La. Code Cr. Proc. 716 C and Giglio, the State

must have been aware of the evidence and have intended to offer it at trial. The

testimony at trial indicates that during questioning by the judge it was revealed that

Newton believed Brown’s nickname to be “K.K.” On cross-examination Newton

stated that he had not told the State about Brown’s alleged statement at the time of

the crime. Newton also explained that he did not tell the officers at the scene as he

was in severe pain from being stabbed, nor did he tell the officers later the same

week when he met with them. Newton stated that the officers were more interested

11 in the marijuana he had delivered to his uncle than in investigating the stabbing.

As such, Newton’s testimony was not impeachment evidence. The trial court did

not err in denying Brown’s motion for new trial.

Accordingly, for the reasons set forth above, we affirm the convictions.