State v. Buhcannon

112 So. 3d 312, 2011 La.App. 4 Cir. 1727, 2013 WL 979535, 2013 La. App. LEXIS 502
CourtLouisiana Court of Appeal
DecidedMarch 13, 2013
DocketNo. 2011-KA-1727
StatusPublished
Cited by6 cases

This text of 112 So. 3d 312 (State v. Buhcannon) 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. Buhcannon, 112 So. 3d 312, 2011 La.App. 4 Cir. 1727, 2013 WL 979535, 2013 La. App. LEXIS 502 (La. Ct. App. 2013).

Opinion

TERRI F. LOVE, Judge.

_JjThis appeal arises from defendant’s conviction of attempted second degree robbery. The defendant was sentenced to six years at hard labor, with credit for time served. The issues raised on appeal include: (1) whether the trial court abused its discretion by denying the defendant’s motion to suppress the out-of-court identification; (2) whether there was sufficient evidence to support the conviction and sentence; and (3) whether the defendant received ineffective assistance of counsel. We find that the trial court did not abuse its discretion by denying the motion to suppress the out-of-court identification, because the identification was reliable. Additionally, when viewed in a light favorable to the prosecution, the evidence was sufficient to convince a rational trier of fact that the defendant intended to attempt to commit the crime of second degree robbery; and, the defendant received effective assistance of counsel. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Dominic Buhcannon (“Mr. Buhcannon”) was charged by bill of information with second degree robbery. Mr. Buhcannon appeared for arraignment and entered a plea of not guilty. A hearing was held, following which, the trial court deferred ruling on probable cause and on Mr. Buh-cannon’s motion to suppress. The trial | ?court denied the motion to suppress and found sufficient probable cause to substantiate the lesser offense of simple robbery.

Mr. Buhcannon elected to have a trial by judge, following which, the judge found him guilty of attempted second degree robbery. Mr. Buhcannon filed a motion for a new trial and a motion for post-verdict judgment of acquittal, which were denied. Mr. Buhcannon was sentenced to six years at hard labor with credit for time served. Through counsel, Mr. Buhcannon moved for appeal, and defense counsel filed a written motion for appeal. Additionally, Mr. Buhcannon filed two motions to file a supplemental pro se brief which this court granted on two separate occasions. Thereafter, the defendant filed a supplemental pro se brief. Through counsel, Mr. Buhcannon contends the trial court erred in denying his motion to suppress identification. Likewise, Mr. Buh-cannon urges in his pro se brief two assignments of error including claims that the evidence was insufficient to support his conviction and that he received ineffective assistance of counsel.

On September 18, 2008, around 2:80 p.m., Joseph Centanni (“Mr. Centanni”) was working on his house at 212 North Clark Street in New Orleans. Mr. Cen-tanni was on a step ladder working on a transom window when he saw a blue car driven by a woman passing slowly. Shortly afterwards, he walked out on his porch and saw the woman at the bottom of his stairs on the side of his house. The woman asked to see his house. Mr. Centanni asked if she was alone and she said that she was by herself. Mr. Centanni let her in and once inside she asked if he had a bathroom. The woman looked at the bathroom, and then asked Mr. Centanni if he had any work for her to do. Mr. Centanni told her no and they walked outside to the porch.

[ .¡When Mr. Centanni walked outside on the porch he saw a man sitting on his stairs. The woman told Mr. Centanni that he wanted to use the bathroom. Mr. Cen-tanni reluctantly let the man into his house so that he could use the bathroom. Mr. Centanni indicated that it was time to go after he noticed the man was in the bathroom for some time. The man walked out of the bathroom and into the doorway in [315]*315front of Mr. Centanni. The woman was seated on the chair behind Mr. Centanni. The woman then asked Mr. Centanni if this was “a black and white thing?” Mr. Centanni turned back to face the woman to respond to her and the man hit him from behind. Mr. Centanni fell to the ground. The man rolled him to the front of the house. The man started kicking him and jammed his foot across his face. Mr. Cen-tanni noticed that the woman had a red hammer, and she hit him on his legs. Then man grabbed Mr. Centanni’s wallet, and he and the woman left. Mr. Centanni was left in a daze and was not able to see the man and woman leave.

After Mr. Centanni regained his composure, he drove around and stopped a police officer who followed him to his house. Detective Krister Villen (“Detective Villen”) along with another detective went to Mr. Centanni’s home and he described the suspects to them. Mr. Centanni described the woman as a heavy-set woman with reddish complexion and straight hair and described the man as a woman or a man dressed in black tights with cut-off jeans and wearing a black skullcap.

Detective Villen testified that he was assigned to the First District Robbery Unit, and investigated the robbery at 212 North Clark Street. Detective Villen stated when he met with Mr. Centanni he was a little shaken up and had a busted lip. Detective Villen stated Mr. Centanni described the woman as having a reddish complexion, heavy set with long straight hair and believed he described the man as ^wearing “black tights, blue jeans and a yellow bandana in his hair.” Mr. Centanni also described to Detective Villen the vehicle in which the suspects fled as a dark blue Buick Park Avenue.

Sergeant Troy Williams testified that later that day he and Lieutenant Cambiotti responded to a dispatch in an unmarked police car near Le Petit Motel. The officers observed a man dressed in female attire, wearing a yellow bandana, a blue shirt and jean shorts with tights. When the man saw the officers he discarded a hammer he had in his hand underneath the rear of a vehicle that was parked in the parking lot of Le Petit Motel.

During trial Detective Villen testified that he went to Le Petit Motel because there was a call dispatched about a black male dressed as a female chasing after another black male with a hammer. The man had on “black tight shorts, with blue jeans over it.” He also had a yellow headband in or on his hair. Detective Villen further stated the man “was a black male dressed as a female.” The man identified himself as “Charles Frazier” and agreed to do a show-up identification with the police officers.

About six hours after the robbery, Detective Villen contacted Mr. Centanni so that he could do a one-on-one identification. Sergeant Williams and Lieutenant Cambiotti drove Mr. Centanni to the Le Petit Motel and Mr. Centanni was seated in the back. The police car pulled about 20 feet away from Mr. Frazier. Detective Villen was standing six to eight feet away from Mr. Frazier and there was no one else near him. Mr. Buhcannon was the only African American man standing outside. The windows on the car were tinted, but Mr. Centanni put the window down and identified the man as the one who robbed him earlier. After Mr. Centanni identified Mr. Frazier, the police officers arrested him. During booking, |sit was determined that the man that was arrested was Dominic Buhcannon and not Charles Frazier.

At trial, Mr. Centanni testified that he wore glasses when driving and while working on houses. Mr. Centanni stated that he did not call 911 immediately after the [316]*316incident because he was not sure his insurance was going to cover it, but he later made an appointment to see a doctor. Mr. Centanni sought treatment with Dr. Martinez, a pain management physician, for his leg shortly after the incident. Mr. Cen-tanni also testified that he underwent microscopic surgery at the Pontchartrain Clinic and that he is currently taking Dar-vocet daily for pain as a result of the incident.

During the trial, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
112 So. 3d 312, 2011 La.App. 4 Cir. 1727, 2013 WL 979535, 2013 La. App. LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buhcannon-lactapp-2013.