State v. Junior

542 So. 2d 23, 1989 WL 26170
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
Docket88-KA-426
StatusPublished
Cited by39 cases

This text of 542 So. 2d 23 (State v. Junior) 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. Junior, 542 So. 2d 23, 1989 WL 26170 (La. Ct. App. 1989).

Opinion

542 So.2d 23 (1989)

STATE of Louisiana
v.
Donald JUNIOR.

No. 88-KA-426.

Court of Appeal of Louisiana, Fifth Circuit.

March 15, 1989.
Writ Denied June 30, 1989.

*24 Regan & Associates, Martin E. Regan, Jr., New Orleans, for appellant.

John M. Mamoulides, Dist. Atty., Guy De Laup, Asst. Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty. (Louise Korns, of counsel), Gretna, for appellee.

Before CHEHARDY, C.J., and GAUDIN and DUFRESNE, JJ.

CHEHARDY, Chief Judge.

Donald Junior appeals his conviction of armed robbery under LSA-R.S. 14:64. His primary assignment of error argues the incorrectness of the eyewitness identification. Appellant also complains his trial counsel was ineffective, and his appellate counsel was not allowed to conduct post-trial evidentiary proceedings to obtain pre-trial discovery. We affirm defendant's conviction and sentence for the reasons assigned below.

On January 23, 1987 at 12:50 a.m., Donald Junior entered Dan's Food Store in Gretna, Louisiana. He obtained a six-pack of beer from the rear of the store, approached the cashier's counter, and asked cashier Karen Boyd for two cartons of cigarettes. He then pointed a gun at Boyd and demanded the money from the register. When she did not comply immediately, Junior told Boyd he would shoot her if she did not open the register. Defendant took the cash Boyd produced, the beer and the cigarettes, and left the store on foot. Boyd activated the alarm button under the register.

Officer Titman of the Gretna Police Department responded to Boyd's call. Boyd related the events of the robbery to him. She described her assailant as a black male with a new-type Afro haircut, cut high on the top and tight on the sides. She described his long dark coat. She stated that he pointed a large revolver at her; she was unsure of the gun's color. Thirty minutes later, Sgt. Anthony Christiana of the Gretna Police Department interviewed Boyd at the scene. She told him that she could positively identify the robber if she saw him again.

Boyd accompanied Sgt. Christiana to police headquarters, where she assisted him in compiling a composite description that she stated resembled the man who had committed the robbery. Reviewing photograph books, Boyd selected a photograph; she stated that it was a picture of the man who robbed her. The photograph was that of Donald Junior. Boyd told Sgt. Christiana that the only difference between the man in the photograph and her assailant was the hairstyle. The man in the photograph had a fuller-type haircut, whereas her assailant's hair was cut short on the sides and medium to bushy on the top. At 4 p.m. on the afternoon of the robbery, Boyd returned to police headquarters, where she viewed a photographic lineup— photographs of six black males. Boyd selected the photograph of Donald Junior, stating, "When he robbed me, his hair was shorter."

On the basis of Boyd's identification, Donald Junior was arrested three days after the robbery. Sgt. Christiana took a color Polaroid photograph of Junior and compiled a second photographic lineup. (At the time of arrest, Donald Junior was wearing his hair shorter than it had been at the time of the first two photographs that Boyd identified.) From these five photographs Boyd positively identified Donald Junior as the man who committed the armed robbery. Subsequent execution of a search warrant at defendant's residence yielded a blue R.P.M. jacket and a Titan Tiger .38 caliber nickel-plated revolver.

At arraignment, Junior entered a plea of not guilty to the charge of armed robbery. After the hearing in July 1987, defense counsel's motion to suppress the identification of Junior was denied. At the December 1987 trial, the 12-member jury found defendant guilty of armed robbery. Based on Boyd's positive identification, Junior was sentenced to 15 years at hard labor without benefit of parole, probation or suspension of sentence. From the conviction and sentence, Donald Junior appeals.

*25 ASSIGNMENT OF ERROR No. 2

To insure the guarantee of the defendant's Fourteenth Amendment due process rights and to support a criminal conviction, the reviewing court must determine whether the sufficiency of the evidence could reasonably have supported a verdict of guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence of record in the light most favorable to the prosecution, any rational trier of fact could have found every element of the crime established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Mussall, 523 So.2d 1305 (La.1988).

In State v. Smith, 430 So.2d 31 (La. 1983), dissenting opinion 432 So.2d 206 (La. 1983), the reviewing court sustained defendant's conviction for aggravated burglary and forcible rape on the victim's positive identification of her assailant in a pre-trial photographic lineup and repeatedly in open court. In so doing, the court reiterated the standard set forth in Jackson, supra, that when the key issue in the case is the identification of defendant as the assailant, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. at 45; State v. Brady, 414 So.2d 364 (La.1982). We examine the trial record in light of the foregoing principles.

A conviction of armed robbery under R.S. 14:64 requires proof of the taking of a thing of value from the control of another, by force or intimidation, while armed with a dangerous weapon. Although it is implied rather than expressly stated in the statute, identification of the perpetrator of the crime is required. Boyd testified that Junior stood two to three feet from her for two minutes, pointed his gun at her and demanded money. He fled with the register receipts. Thereafter Boyd unequivocally identified Junior as the robber on three separate pre-trial occasions. She identified Junior as her assailant in open court.

Junior testified in his own behalf. He contended that on January 22 he picked his girl friend Vanessa Smith up from school at 9:30 p.m. and remained with her at her home for two and a half hours. He went straight to his own home where he called Vanessa and spoke with her by telephone until 12:30 a.m., January 23. Vanessa Smith stated that Junior left her house at 11:45 p.m. He called her at 11:52 p.m. and the two talked on the telephone for one-and-a-half hours. She believed that defendant called her from his home. Janice Junior, the defendant's sister, recalled that he returned to the family home at 11:30 p.m. He took the telephone to his room. Though she did not see or hear the defendant thereafter, she saw the extension cord running through his bedroom door. She stated that defendant was on the telephone, she believed with Vanessa, until 1:30 a.m.

Defendant made no showing that the photographic lineups were improper. See State v. Smith, supra, at 43. Despite the testimony of defendant and his alibi witnesses, the jury obviously gave more credence to the testimony of the eyewitness Boyd. LSA-C.Cr.P. art. 802(3). We are satisfied that, based on Boyd's identification, the jury could reasonably have found that the elements of LSA-R.S. 14:64 were satisfied and that the identification of the defendant was proved beyond a reasonable doubt. State v. Brady, 524 So.2d 1356 (La.App. 1 Cir.1988).

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Cite This Page — Counsel Stack

Bluebook (online)
542 So. 2d 23, 1989 WL 26170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-junior-lactapp-1989.