State v. Dawson

490 So. 2d 560
CourtLouisiana Court of Appeal
DecidedJune 5, 1986
DocketKA 4055
StatusPublished
Cited by7 cases

This text of 490 So. 2d 560 (State v. Dawson) 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. Dawson, 490 So. 2d 560 (La. Ct. App. 1986).

Opinion

490 So.2d 560 (1986)

STATE of Louisiana,
v.
Andre DAWSON and Stephen McGee.

No. KA 4055.

Court of Appeal of Louisiana, Fourth Circuit.

June 5, 1986.

William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F.

*561 Connick, Dist. Atty., Michael E. McMahon, Asst. Dist. Atty., New Orleans, for the State.

M. Craig Colwart, Orleans Indigent Defender Program, Nancy Schoenberg, Student-Atty., Elizabeth W. Cole, Supervising Atty., Tulane Criminal Law Clinic, New Orleans, for defendants.

Before CIACCIO and WILLIAMS, JJ., and HUFFT, J. Pro. Tem.

PRESTON H. HUFFT, Judge Pro Tem.

Defendants, Andre Dawson and Stephen McGee, were charged by bill of information filed October 10, 1984, with two counts of armed robbery in violation of La.R.S. 14:64. Both defendants entered a plea of not guilty and both were found guilty as charged by a twelve person jury. On January 17, 1985, both defendants were sentenced to thirty years at hard labor without benefit of probation, parole, or suspension of sentence on count one, and fifteen years at hard labor without benefit of probation, parole, or suspension of sentence on count two; sentences to run consecutively. Both defendants now appeal their conviction and sentence.

Defendant McGee argues that the trial court erred: (1) in denying defendant's motion to suppress the in-field identifications, (2) in denying defendant's motion for an in camera inspection of the police report during trial, and (3) in overruling defense counsel's objections and denying defendant's motion for a mistrial when the prosecutor made allegedly impermissible comments during rebuttal closing argument. Although the foregoing assignments of error are made only on behalf of McGee, all such assignments are applicable to the appeal of Dawson. State v. Arbuthnot, 367 So.2d 296 (La.1979). In addition, both defendants assign as error the trial court's imposition of an excessive sentence.

FACTS

On September 28, 1984, at approximately 5:30 a.m., Cheyenne Thomas and Michael Whitlock were waiting for a bus on the corner of Washington and LaSalle in New Orleans. The defendants approached Thomas and Whitlock and McGee pulled a gun and told Thomas and Whitlock to get against the wall of a building. While McGee held a gun on the victims, Dawson searched their pockets. The defendants took five dollars and an identification card from Thomas, and a radio, a change of clothes, four twenty dollar bills and some one dollar bills, a stainless steel knife, and two rings from Whitlock. The defendants then told the two victims to walk away.

Thomas flagged a police car while Whitlock followed the two men. A police broadcast of the description of the perpertrators given by Thomas led to the arrest of the defendants not more than thirty minutes after the commission of the crime. Both Thomas and Whitlock positively identified the defendants. In addition, the victims' aforementioned belongings were found in the possession of the defendants.

MCGEE'S ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, McGee alleges that the trial court erred in denying his motion to suppress the in-field identification made by the victims.

When considering the constitutionality and admissibility of an out-of-court identification procedure, we must first make a determination of whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. Secondly, if the procedure was impermissibly suggestive, we must determine whether it gave rise to a substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984)

One-on-one confrontations between a suspect and a victim are permissible when justified by the overall circumstances, particularly when the accused is apprehended within a short period of time after the crime was committed, and returned to the scene of the crime. State v. Bickham, 404 So.2d 929 (La.1981); State v. Talley, 446 *562 So.2d 455 (La.App. 4th Cir.1984). In the present case, the identification in question was obtained approximately thirty minutes after the crime and approximately fifteen blocks from the scene of the crime.

The United States Supreme Court has enunciated a five factor test to determine whether an identification is reliable: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the identification. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

At trial, Thomas testified he observed the defendants walking toward Whitlock and him for one minute, the defendants stood only two feet from him while they were robbing him, there were two street lights on the corner where the crime occurred, and he especially watched McGee because McGee had the gun. Whitlock testified it took ten minutes for the crime to occur and he watched the defendants the whole time. He testified there were street lights at the corner where they were standing and there was a park across the street which was well lit. Officer Doucette testified he initially recognized the two defendants from the description the victims gave and which was broadcast. The police officers and the victims testified the victims made a positive identification of the defendants at the scene of the arrest and this identification occurred less than one hour after the commission of the crime. Accordingly, under the five factor reliability test of Manson v. Brathwaite, supra, and Neil v. Biggers, supra, the identification was reliable.

This assignments lacks merit.

McGEE'S ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, McGee alleges that the trial court erred in denying his motion for an in camera inspection of the police report to determine whether it contained inconsistent statements which the defendant could have used to impeach the witnesses.

The United States Supreme Court has held that the Fourteenth Amendment mandates that the prosecution must disclose to the defense evidence which is favorable to the defendant if such evidence is material to his guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The prosecution also must disclose such evidence for the impeachment of a witness whose testimony (and credibility) may be determinative of the defendant's innocence or guilt. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Although there is no duty to provide defense counsel with unlimited discovery of the prosecutor's case, if the subject matter of a request for evidence is material or if a substantial basis for claiming materiality exists, the prosecutor who receives a specific and relevant request must respond by either furnishing the information to the defense counsel or by submitting it to the judge for an

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490 So. 2d 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dawson-lactapp-1986.