State v. Caine

652 So. 2d 611, 1995 WL 112045
CourtLouisiana Court of Appeal
DecidedMarch 3, 1995
DocketKA 94 0119
StatusPublished
Cited by3 cases

This text of 652 So. 2d 611 (State v. Caine) 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. Caine, 652 So. 2d 611, 1995 WL 112045 (La. Ct. App. 1995).

Opinion

652 So.2d 611 (1995)

STATE of Louisiana
v.
Donald CAINE.

No. KA 94 0119.

Court of Appeal of Louisiana, First Circuit.

March 3, 1995.

*612 Doug Moreau, Dist. Atty. by Richard Johnson, Asst. Dist. Atty., Baton Rouge, for appellee the State of La.

David Price, Public Defender, Baton Rouge, for appellant Donald Caine.

Before FOIL, WHIPPLE and KUHN, JJ.

FOIL, Judge.

The defendant, Donald Caine, was charged by bill of information with attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1. He pled not guilty and, after trial by jury, was found guilty as charged. The defendant was subsequently adjudicated a second felony habitual offender and sentenced to fifty years at hard labor with credit *613 for time served.[1] He appealed, urging the following assignments of error:

1. The trial court erred in denying the defendant's motion to suppress.
2. The trial court erred in accepting a verdict not supported by sufficient evidence.

Facts

At approximately 9:00 p.m. on March 24, 1993, the defendant entered a convenience store on Nicholson Drive near L.S.U. in Baton Rouge, Louisiana. Wanda Fitzgerald was working at the store and recognized the defendant because he had been in the store two previous times that week. Fitzgerald claimed that the first time she saw the defendant in the store, he stole some items from the store; the second time, he attempted to steal some items. Fitzgerald stated that, because of the previous incidents, when she saw the defendant in the store on the date of the instant incident she asked him to leave because he had been banned from the store.

The defendant refused to leave the store and grabbed a carton of cigarettes from a display. Fitzgerald walked around to the other side of the counter and attempted to take the cigarettes away from the defendant. Fitzgerald stated that she told the defendant to "GET OUT," but the defendant refused. Fitzgerald then reached for the telephone to call the police, but the defendant told her, "I'LL GIVE YOU AIDS" and then stuck her with a needle attached to a syringe containing clear liquid. Fitzgerald stated that she saw the defendant pull the syringe out of his pocket, but she did not move away fast enough to avoid the needle. She stated that the needle broke the skin of her arm and she bled from the wound.

Fitzgerald then grabbed the defendant, shoved him out of the door, and called the police. When the police arrived at the store, she gave them a description of the assailant. Approximately seven hours after the crime occurred, Fitzgerald identified the defendant at the police station as being the assailant.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends that the trial court erred in denying his motion to suppress. He argues that the victim's identification of him was not reliable because the victim identified him as the perpetrator of the crime because of the suggestive one-on-one identification procedure.

A defendant attempting to suppress an identification must prove that the identification was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Daughtery, 563 So.2d 1171, 1173-74 (La.App. 1st Cir.), writ denied, 569 So.2d 980 (La. 1990). Even should the identification be considered suggestive, that factor alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Lewis, 489 So.2d 1055, 1057-58 (La. App. 1st Cir.), writ denied, 493 So.2d 1218 (La.1986).

In reviewing an identification procedure, the court must look at the totality of the circumstances surrounding the identification procedure to determine whether the procedure was so unnecessarily suggestive and so conducive to irreparable mistaken identification that the defendant was denied due process of law. State v. Marchese, 430 So.2d 1303, 1307 (La.App. 1st Cir.1983). One-onone confrontations between a suspect and witness are not favored by the law, but they are permissible when justified by the overall circumstances. State v. Thomas, 589 So.2d 555, 563 (La.App. 1st Cir.1991). The trial court's determination regarding the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Bickham, 404 So.2d 929, 934 (La.1981).

In the instant case, the defendant was brought into the police station on an unrelated charge about six hours after the instant *614 incident. Baton Rouge City Police Officer Jim Norman testified at the hearing on the motion to suppress the identification that he recognized the defendant as the person involved in the instant incident from a description given to him by Fitzgerald. Norman stated that he felt that the defendant fit the description "EXTREMELY WELL." Norman then called Fitzgerald and informed her that a suspect was in custody and asked her to come to the station to look at him. Fitzgerald arrived at the station within twenty minutes, and the officers took her to the defendant's holding cell. Fitzgerald looked in the cell and immediately said, "THAT'S HIM." Norman stated that he did not conduct a physical or photographic lineup and that the defendant was in his street clothes at the time he was identified. Norman felt that Fitzgerald was "100 PERCENT CERTAIN" that the defendant was the assailant.

Wanda Fitzgerald testified at the hearing on the motion to suppress that the defendant had been in the store where she worked two times prior to the instant incident and she had had the opportunity to observe his face during those times. She stated that when the instant incident occurred she recognized the defendant as being the same man that she had seen in the store twice before. Fitzgerald stated that when she arrived at the police station, she informed them she was there to try to make an identification. The officers took her to the defendant's holding cell. She identified the defendant as being the assailant and stated that he was wearing the same clothes he had been wearing when he committed the instant crime. The officers told Fitzgerald that the defendant had been picked up at another store, but they did not tell her why he had been apprehended.

Fitzgerald testified at trial that, after the officers arrived at the store, she gave them a description of the perpetrator and the clothing he was wearing. She also gave a description to another police officer who later came into the store. Fitzgerald went to the police station about 4:00 a.m. She stated that, after she arrived at the police station, she "FILLED OUT A REPORT, WENT DOWN, LOOKED THROUGH THE THREE CELLS THEY HAD AND IDENTIFIED THE GENTLEMAN." She stated that she was "VERY CONFIDENT" that the person she picked out was the same person who had attacked her. The victim also made an in-court identification of the defendant and stated that there was no doubt in her mind that he was the person who attacked her.

Darren Leach, a Baton Rouge City Police Officer, testified that he responded to the instant incident. He spoke with Fitzgerald, and she told him what had happened and gave him a description of the assailant and his clothing. She told him that she had seen him in the store several times before.

Norman testified at trial that he spoke to Fitzgerald after the instant crime occurred.

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Related

State v. Schmidt
771 So. 2d 131 (Louisiana Court of Appeal, 2000)
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Cite This Page — Counsel Stack

Bluebook (online)
652 So. 2d 611, 1995 WL 112045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-caine-lactapp-1995.