State v. Jones

457 So. 2d 110, 1984 La. App. LEXIS 9535
Louisiana Court of Appeal·Decided September 26, 1984·No. No. 16288-KA·Published·Cited by 5 cases

Opinion

HALL, Judge.

Assigning three errors, defendant appeals his convictions by a jury of armed robbery and of attempted manslaughter, after being charged with armed robbery and attempted first degree murder.

Defendant’s assignments contend that a photographic lineup was improperly conducted, that a bullet fragment was unlawfully admitted as' evidence, and that an employee of the regional crime lab was erroneously accepted as a firearms identification expert. We affirm the convictions.

Facts

Shortly after midnight on November 6, 1982, the victim, Melvin Goines, stopped his [112]*112automobile at a Shreveport intersection. Defendant entered the passenger side of the automobile, placed a gun to Goines’ head, and commanded Goines to drive around the Allendale section of Shreveport.

At defendant’s later demand, Goines surrendered to defendant his car keys and 12 one-dollar bills. Defendant, apparently angered at the small amount of money, ordered Goines to remove his coat and boots. Goines refused because he did not want to be stranded without clothes or car. Defendant then beat Goines with the butt of the gun. When Goines blew the car horn, defendant shot Goines four times, twice in the head, and in the arm and hand. After defendant ran away, Goines staggered to a nearby residence for help. The entire encounter lasted approximately 15 minutes.

Defendant was identified as the assailant by the victim from a photographic lineup and in court. Defendant’s girlfriend testified defendant told her he committed the crime. Fragments of bullets found in the car door and in the hospital where the victim was treated were identified by a firearms expert as having been fired from a pistol found in the defendant’s bedroom.

Assignment of Error No. 1:

Defendant contends that the trial court erred in refusing to suppress the results of a photographic lineup conducted at the hospital where the victim was recovering from his wounds. He argues that Goines’ in-court identification was tainted by the photographic lineup.

The issue is whether the lineup procedure was so unnecessarily suggestive and so conducive to an irreparable mistaken identification that the defendant was denied due process of law. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Neslo, 433 So.2d 73 (La.1983). A lineup is unduly suggestive -if the identification procedure displays the defendant so that the witness’s attention is focused on the defendant. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Robinson, 386 So.2d 1374 (La.1980).

The photographic lineup was assembled after one of the detectives investigating the case received information that the defendant might be a suspect in the robbery and shooting. The detective went to the hospital where Goines was recovering from his wounds. After ascertaining that Goines was alert, the detective showed Goines the photographs of six people. The lineup photographs are included in the record. The other photographs in the lineup sufficiently resemble the defendant so as to properly test the identification. After observing these photographs for less than one minute, the victim identified Lynn Zell Jones as his attacker.

Goines testified at the preliminary examination and at trial that the detective did nothing to suggest which photograph he should choose. Goines said that he was not told, before his identification of the defendant, that the lineup contained a suspect, and that it was only after he identified defendant that he learned that one of the men in the lineup had reportedly talked about having shot someone on the same night.

Defendant’s claim that the photo identification was suggestive because the detective implied there was a suspect among the photographs is not supported by the record. Assuming arguendo, however, that some factual support for defendant’s claim exists, it has been held that a statement to a victim of a crime that police have a suspect for the victim to view in a lineup does not constitute impermissible suggestiveness because it is generally assumed if one is requested to view a photographic or physical lineup there is a suspect in the lineup. State v. Wright, 410 So.2d 1092 (La.1982); State v. Stewart, 389 So.2d 1321 (La.1980); State v. White, 446 So.2d 1317 (La.App.2d Cir.1984), writ denied 450 So.2d 957 (La.1984).

The likelihood of misidentification is the basis for finding that a defendant’s due process rights have been violated. State v. Guillot, 353 So.2d 1005 (La.1977); Manson v. Brathwaite, supra. Reliability of identification is tested by five factors set forth in [113]*113Neil v. Diggers, 409 U.S. 188, 92 S.Ct. 375, 34 L.Ed.2d 401 (1972). These factors were reiterated in Manson, supra, and by the Louisiana Supreme Court in Guillot, supra. Application of these factors to this record reveals:

(1) The opportunity to view:
The victim and defendant were in the front seat of a car for approximately 15 minutes. Goines testified that the street lights made it light enough for him to clearly see defendant’s face even though it was nighttime.
(2) The degree of attention:
The victim testified that defendant at one point during the robbery told him to “get a good look at him.” Goines said he used the opportunity to study defendant’s face.
(3) The accuracy of the description:
Immediately after the crime, when Goines was being treated in the hospital emergency room, he told the detective that he remembered his assailant. Goines accurately described his assailant as a young black man in his early 20s, of thin to medium build, and weighing 170 to 180 pounds. Goines told the officer that the man had a goatee, an Afro hairstyle, and, had worn a knee-length green military overcoat. Goines also observed that his assailant had a gold upper tooth.
(4) The witness’s level of certainty:
The victim and the detective who presented the photographic lineup testified that Goines took less than one minute to identify defendant’s photograph. The victim testified that he could not forget his assailant’s face and was certain of his identification even though the defendant had changed his hairstyle and shaved his goatee since the crime.
(5) The time between the crime and the confrontation:
Goines was shown the photographic lineup two days after the robbery.

Under these circumstances, it is evident that even if the identification procedure had been suggestive there was no significant chance of misidentification. The trial court did not err in refusing to suppress the photographic lineup.

Further, the in-court identification by the victim under the totality of the circumstances was well supported by independent sources. No violation of defendant’s due process rights occurred. State v. Gipson, 359 So.2d 87 (La.1978); State v. Guillot, supra; State v. Clark, 437 So.2d 879 (La.App.2d Cir.1983).

Assignment of Error No. 2:

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Jones, 457 So. 2d 110, 1984 La. App. LEXIS 9535 (La. Ct. App. 1984).

457 So. 2d 110 (State v. Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Trahan
543 So. 2d 984 (Louisiana Court of Appeal, 1989)
State v. Collins
535 So. 2d 973 (Louisiana Court of Appeal, 1988)
State v. Cotton
511 So. 2d 1207 (Louisiana Court of Appeal, 1987)
State v. Strong
463 So. 2d 830 (Louisiana Court of Appeal, 1985)
State v. Jones
462 So. 2d 207 (Supreme Court of Louisiana, 1985)