State v. Duncan

635 So. 2d 653, 1994 WL 113604
CourtLouisiana Court of Appeal
DecidedApril 6, 1994
DocketCR93-1384
StatusPublished
Cited by5 cases

This text of 635 So. 2d 653 (State v. Duncan) 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. Duncan, 635 So. 2d 653, 1994 WL 113604 (La. Ct. App. 1994).

Opinion

635 So.2d 653 (1994)

STATE of Louisiana, Plaintiff-Appellee
v.
Boyvic Bernard DUNCAN, Defendant-Appellant.

No. CR93-1384.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1994.

*654 Gerald Henderson, for State.

Harold A. Van Dyke III, for Boyvic Bernard Duncan.

Before GUIDRY and LABORDE, JJ., and CULPEPPER, J. Pro Tem.[1]

LABORDE, Judge.

Defendant appeals his conviction on two counts of armed robbery, violations of La. R.S. 14:64. He was sentenced to thirty years at hard labor without benefit of parole, probation, or suspension of sentence on one count, and forty years at hard labor on the second count, the sentences to run concurrently. Finding no reversible error committed by the trial court, we affirm defendant's conviction and sentence.

FACTS

On December 27, 1990, at approximately 1:00 a.m., defendant, Boyvic Bernard Duncan, robbed Lubricare Plus, a combination service station and convenience store located at the corner of Third and Willow Glen in Alexandria, Louisiana. Dewayne Scott and Jessie Jacobs, employees of Lubricare, were working at the time of the robbery. Defendant shot Jacobs in the head during the robbery.

On December 27, 1990, at about 9:00 p.m., defendant robbed the Shoe Town, located on Memorial Drive, also in Alexandria. Sharon Kibodeaux and Sara Scallon, employees of Shoe Town, were working at the time. Defendant was also armed during this robbery.

Defendant was indicted on two counts of armed robbery, violations of La.R.S. 14:64. On April 15, 1993, a jury found defendant guilty as charged on both counts.

On April 20, 1993, defendant filed a motion for new trial and a motion for post verdict judgment of acquittal. On June, 21, 1993, the trial judge denied both motions, then sentenced defendant to forty years at hard labor without benefit of parole, probation or suspension of sentence on count one, and thirty years at hard labor without benefit of parole, probation or suspension of sentence on count two. The sentences are to run concurrently with each other but consecutively to any previously imposed sentence he was serving.

Defendant appeals both convictions.

ERRORS PATENT

La.C.Cr.P. art. 930.8 provides that at time of sentencing the trial court shall inform the defendant of the prescriptive period for post-conviction relief. The record shows that the court did not so inform defendant. This defect has no bearing on whether the sentence is excessive and thus is not grounds to reverse the sentence or remand the case for resentencing. C.Cr.P. art 921. The three year prescriptive period does not begin to run until the judgment is final under La. C.Cr.P. art 914 or 922, so prescription is not yet running. Apparently, the purpose of notice under Article 930.8(C) is to inform defendant of the prescriptive period in advance; thus the trial court is directed to inform defendant of the provisions of Article 930.8 *655 by sending appropriate written notice to defendant within ten days of the rendition of this opinion, and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Reeves, 613 So.2d 1061 (La.App. 3 Cir.1993).

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges that the trial court erred in failing to suppress evidence of the lineup identifications. Defendant contends that the admission of the lineup evidence unduly prejudiced him and was violative of his constitutional rights.

La.C.Cr.P. art. 703(A) allows a defendant who is adversely affected to move to suppress any evidence that is unconstitutionally obtained.

To suppress an identification, defendant must prove that the identification was "suggestive," and that there was a likelihood of misidentification in the identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Doucet, 380 So.2d 605 (La.1979).

In the present case, each witness who viewed a lineup did so outside the presence of any other witness. The persons in the lineups were all dressed in matching jumpsuits. The photographs used in the photograph lineup had no distinguishing marks. Under the circumstances, we conclude that the procedure used in each lineup was not suggestive.

Additionally, we must evaluate the suggestiveness of the identification procedure to determine whether the persons or pictures used in the lineup display defendant so singularly that the witness' attention is unduly focused on the defendant. State v. Guillot, 353 So.2d 1005 (La.1977). In determining whether the lineups displayed defendant in a singular fashion drawing undue attention, a strict identity of characteristics is not required. Rather, only a sufficient resemblance of others in the lineup is necessary to reasonably test the identification. State v. Guillot, supra, at 1008; State v. Gray, 351 So.2d 448 (La.1977). This determination is made by examining articulable features of the pictures or persons used. These features may include height, weight, build, hair color, hair length and texture, facial hair, skin color and complexion, and the shape of the nose, eyes, and lips.

Black and white photographs were taken at each of the live lineups. The photograph labelled "S-1" depicts the lineup as seen by witness Jacobs, while "S-2" is representative of the lineup viewed by witness Scott. Our examination of each of the lineups reveals that the individuals in each lineup bear a sufficient resemblance to each other to reasonably test the identification by the witness. The Guillot test is passed.

Nor do we find merit to defendant's assertions regarding Kibodeaux's identification of him as the assailant at Shoe Town. Where photographs show only heads and shoulders, features such as height, weight and build are of limited relevance. State v. Guillot, supra, 353 So.2d at 1008. Kibodeaux viewed six photographs taped to a manila folder. All persons in the photographs have similar hair color and length. All have mustaches. All have similar noses, eyes and lips. Several of the photos have similar skin color, complexion, and hair styles.

We find that the photographs sufficiently resemble one another to reasonably test the identification made. The lineup did not display defendant in a singular fashion drawing undue attention to him, nor was it shown that a suggestive identification procedure was utilized in his identification.

Moreover, defendant would be entitled to no relief under the circumstances even if we were to accept as true his argument that the identification procedure was suggestive.

Assuming a suggestive identification procedure, courts must look to several factors to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification. These factors were initially set out in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), and approved in Brathwaite, supra. They include: (1) the *656 opportunity of the witness to view the criminal at the time of the crime; (2) the witness's 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. Id. 432 U.S. at 114, 97 S.Ct. at 2253.

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Bluebook (online)
635 So. 2d 653, 1994 WL 113604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-lactapp-1994.