State v. Benoit

960 So. 2d 279, 2007 WL 1545626
CourtLouisiana Court of Appeal
DecidedMay 29, 2007
Docket07-KA-35
StatusPublished
Cited by12 cases

This text of 960 So. 2d 279 (State v. Benoit) 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 v. Benoit, 960 So. 2d 279, 2007 WL 1545626 (La. Ct. App. 2007).

Opinion

960 So.2d 279 (2007)

STATE of Louisiana
v.
Daniel B. BENOIT.

No. 07-KA-35.

Court of Appeal of Louisiana, Fifth Circuit.

May 29, 2007.

*280 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.

EDWARD A. DUFRESNE, JR., Chief Judge.

On September 21, 2004, a bill of information was filed charging defendant, Daniel B. Benoit, with armed robbery in violation of LSA-R.S. 14:64 (count one), simple burglary in violation of LSA-R.S. 14:62 (count two), and illegal use of a weapon in violation of LSA-R.S. 14:94 (count three). Defendant pled not guilty at his arraignment on September 22, 2004. On January 25, 2005, defendant's motion to suppress identification was heard and denied.

Defendant proceeded to trial on count two alone, and on August 8, 2005, a six-person jury returned a verdict of guilty of *281 simple burglary.[1] On April 12, 2006, the trial court sentenced defendant to twelve years imprisonment at hard labor.

On April 13, 2006, the State filed a multiple offender bill of information, alleging defendant was a third felony offender. After being advised of his rights, defendant stipulated to his multiple offender status. The trial court thereafter vacated defendant's original sentence and sentenced him to twenty-four years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

According to Sergeant Joseph Ragas of the Jefferson Parish Sheriff's Office, on August 22, 2004, he responded to a call regarding a vehicle burglary at the bowling alley located on Manhattan Boulevard in Harvey. Sergeant Ragas testified that he interviewed the victim of the burglary, Scott Gaudin, who said a witness came into the bowling alley and informed him that someone had just burglarized his vehicle.

The witness, James Andrews, testified that on this date he was dropping his daughter off at the bowling alley when he saw someone get out of the passenger side of the truck and then walk to the apartments next door to the bowling alley. Mr. Andrews went inside and asked the lady at the counter if she knew who owned the pickup truck outside. According to Mr. Andrews, he told the truck's owner he saw someone get out of it and saw him throw a can from the truck on top of the building. Mr. Andrews gave a physical description of the subject and a description of his clothing which included a plain black colored tank top shirt with black jean shorts that reached his knees and a stocking or nylon hat on his head.

Sergeant Ragas testified that he went to the adjacent complex to look for the suspect based on the clothing description and located defendant who fit this description. After Sergeant Ragas spoke to defendant, defendant agreed to let the witness look at him. Mr. Andrews positively identified defendant.

Scott Gaudin testified that his glove box was open and he had not left it that way. He further testified that he did not authorize anyone to be inside of his truck or to take any money out of the ashtray in his truck. According to Mr. Gaudin, about five or six dollars in change was missing from his ashtray. In addition, a can of belt dressing had been taken from his truck and thrown on top of the roof. Mr. Gaudin testified his truck was not locked and that the door lever was broken; however, he said someone would have had to pop the lever to open the truck because it looked locked.

On appeal, defendant challenges the sufficiency of the evidence used to convict him. Defendant specifically asserts that the State failed to prove beyond a reasonable doubt that he was the perpetrator of the simple burglary. He claims that there was a substantial likelihood of misidentification pointing to the suggestiveness of both the one-on-one and in-court identifications.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the *282 State is required to prove defendant's identity as the perpetrator. Where the key issue is identification, the State must negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ingram, 04-551 (La. App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Positive identification by only one witness is sufficient to support a conviction. State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

Defendant was convicted of simple burglary. LSA-R.S. 14:62(A) provides "[s]imple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60 [aggravated burglary]."

Defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, but only challenges the identification. When challenging an identification procedure, the defendant must prove the identification was suggestive and that there was a substantial likelihood of misidentification. It is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness. State v. Hurd, 05-258 (La.App. 5 Cir. 11/29/05), 917 So.2d 567, 570, writ denied, 06-1128 (La.11/17/06), 942 So.2d 530.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. Factors to consider in assessing the reliability of an identification include: 1) the witness' opportunity to view the criminal at the time of the crime, 2) the witness' degree of attention, 3) the accuracy of his prior description of the criminal, 4) the level of certainty demonstrated at the confrontation, and 5) the time between the crime and the confrontation. Manson v. Brathwaite, 97 S.Ct. at 2253; State v. Mills, 01-110 (La.App. 5 Cir. 6/27/01), 790 So.2d 102, 107.

Generally, one-on-one identifications are not favored; however, such an identification procedure is permissible under certain circumstances. For example, one-on-one identifications are justified when the accused is apprehended within a relatively short period of time after the occurrence of the crime and when the accused has been returned to the scene for immediate identification. State v. Hurd, 917 So.2d at 571.

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Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 279, 2007 WL 1545626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-benoit-lactapp-2007.