State v. Birch

956 So. 2d 793, 2007 WL 1343889
CourtLouisiana Court of Appeal
DecidedMay 9, 2007
Docket41,979-KA
StatusPublished
Cited by10 cases

This text of 956 So. 2d 793 (State v. Birch) 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. Birch, 956 So. 2d 793, 2007 WL 1343889 (La. Ct. App. 2007).

Opinion

956 So.2d 793 (2007)

STATE of Louisiana, Appellee
v.
Clavin BIRCH, Appellant.

No. 41,979-KA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 2007.

*794 Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.

Walter E. May, Jr., District Attorney, H. Russell Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.

Before GASKINS, PEATROSS and LOLLEY, JJ.

GASKINS, J.

The defendant, Clavin Birch, was convicted by a jury of armed robbery with a *795 firearm, in violation of La. R.S. 14:64 and 14:64.3. He was sentenced to serve 30 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm the conviction, vacate the sentence and remand for resentencing.

FACTS

Deb's Place is a small convenience store in Ringgold, Louisiana, serving the community near the Bienville Parish public boat launch on Lake Bistineau. On the afternoon of June 20, 2003, Shayne Rowell and Janice Flowers were working at Deb's Place. According to Mr. Rowell, they knew "about ninety-nine percent" of the store's clientele. At about 1:30 p.m., a young man came into the store whom they did not know. The man, who was later identified as Wataski Willis, came in, looked around, and went to the coolers in the back of the store to get a drink. Mr. Willis paid for the drink and left. Mr. Rowell and Ms. Flowers discussed Mr. Willis after he left and concluded that they did not know him; they also did not see a vehicle outside the store.

Sometime before 2:00 p.m., Mr. Rowell left the store and went to a house close by. Ms. Flowers remained in the store and waited on a male customer. When that customer left, just after 2:00 p.m., Ms. Flowers had commenced preparing a sandwich when she heard the store's door open. She looked up and saw two young men come into the store and approach the register. Ms. Flowers went to the register as well and asked the men if she could help them. The first man, whom Ms. Flowers later identified as Mr. Willis, produced a handgun, pointed it at Ms. Flowers, and demanded money.

Ms. Flowers opened the cash register, and as Mr. Willis took the money from the register, Ms. Flowers saw that the second man also had a handgun and was pointing it at her. She subsequently identified the second man as the defendant, Clavin "Eric" Birch. She also noticed a third man standing in the door of the store with the door half-open. This individual was later identified as Mario Owens. As Mr. Willis took the money from the register, the defendant took cigarettes and cigars. The three men then fled the store; as they ran away, Ms. Flowers heard a single gunshot.

Ms. Flowers called 911, but the robbers had already fled before deputies could arrive. No usable fingerprints were found at the scene. A local resident, Zena Mitchell, had seen the defendant's car near the store at about 1:15 p.m. She recognized the defendant and Mr. Willis, as two of the three occupants of the car. Subsequent investigation led the Bienville Parish Sheriff's Office ("BPSO") to consider the defendant, Mr. Willis, and Mr. Owens as suspects. As a result, BPSO Deputy Randy Price created photo lineups including photos of these three men.

About two days after the robbery and before Ms. Flowers had a chance to view the lineups, the defendant's father, Eddie Allums, came into Deb's Place. Mr. Allums was not affiliated with BPSO or any other investigative agency. Ms. Flowers said that when Mr. Allums came into the store, he put the defendant's photo ID down on a table in front of her and asked her if he was one of the robbers. Ms. Flowers was frightened and told Mr. Allums that she did not know; however, in fact she did recognize the defendant from the photo ID as one of the robbers. The next day, on the telephone, she told Mr. Allums that the defendant was one of the robbers.

On June 25, 2003, Deputy Price showed a lineup including Mr. Willis to Mr. Rowell *796 and Ms. Flowers; both identified Mr. Willis as the man who came into the store and bought a drink. Additionally, Ms. Flowers identified Mr. Willis as one of the robbers. Ms. Flowers was not able to identify the defendant in the first photo lineup; Deputy Price explained that the photo of the defendant in the lineup was a close-up where he had a different hair style.

Deputy Price prepared a second photo lineup including the defendant, this time with his current hairstyle, and showed it to Ms. Flowers on July 22, 2003. She identified the defendant in that lineup. She was also able to identify Mr. Owens as the other robber in a different lineup. As a result of Ms. Flowers' identifications, deputies arrested all three men, and they were charged with armed robbery. Mr. Willis and Mr. Owens reached plea agreements with the state in which they pled guilty to this offense in exchange for an agreed-upon sentence. They agreed to testify truthfully in the defendant's trial.

On January 31, 2005, Ms. Flowers signed an affidavit questioning her identification of Clavin Birch as one of the robbers. The affidavit states:

I, Janice Flowers was employed at Deb's Place on June 20, 2003, when three black males entered the store and robbed the place of tobacco and money at gunpoint.
On July 25, 2003, I identified Clavin (Eric) Birch from a photo line-up. Approximately July 23, 2003, Clavin's father, Eddie Allums, came to the store and showed me a picture I.D. of Clavin. I believe that the showing of this I.D. is what made me choose Clavin's picture on the day that the police showed me the picture to identify the robbers.

In May 2005, the defendant filed a motion to suppress Ms. Flowers' identification of him in the photo lineup. The defendant alleged that Ms. Flowers' affidavit proved that there was a substantial likelihood that she misidentified him as the perpetrator when she identified him in the second photo lineup.

The court held a hearing on the motion on August 10, 2005; the only witness at the hearing was Deputy Price. The deputy testified that Ms. Flowers was not able to identify the defendant in the first lineup. This lineup was shown to her shortly after the date when Mr. Allums showed Ms. Flowers the photo of the defendant. Deputy Price said that Ms. Flowers told him that the robbers had "poofy" hairdos; the photo of the defendant in the first lineup shows him with a flatter haircut. The deputy explained that Ms. Flowers was immediately able to pick the defendant out of a group of similar looking men when the hairstyles were more like the one the defendant had at the time of the robbery. Deputy Price said that he spoke with Ms. Flowers about the affidavit and she told him that the photo shown to her by Mr. Allums had influenced her choice on the second lineup. The court concluded that Ms. Flowers' contact with Mr. Allums was relevant only to the weight to be given her identification and denied the motion to suppress.[1]

Ms. Flowers testified at trial that the affidavit was false. During the course of the investigation, Ms. Flowers became aware that others in the community knew *797 of her identity as the victim. She explained:

Well, Mr. Eddie Allums contacted . . . a friend of mine that was living with me at the time, and said that he wanted to speak to me. And I . . . knew what he wanted. He wanted me to make a statement saying that his son's not the one that robbed me, which I refused to do.

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Cite This Page — Counsel Stack

Bluebook (online)
956 So. 2d 793, 2007 WL 1343889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-birch-lactapp-2007.