State v. Lee

807 So. 2d 359, 2002 WL 80863
CourtLouisiana Court of Appeal
DecidedJanuary 23, 2002
Docket35,333-KA
StatusPublished
Cited by5 cases

This text of 807 So. 2d 359 (State v. Lee) 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. Lee, 807 So. 2d 359, 2002 WL 80863 (La. Ct. App. 2002).

Opinion

807 So.2d 359 (2002)

STATE of Louisiana, Appellee,
v.
Frederick D. LEE, Appellant.

No. 35,333-KA.

Court of Appeal of Louisiana, Second Circuit.

January 23, 2002.

*362 Paula C. Marx, Anita D. McKeithen, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler, William J. Edwards, Assistant District Attorneys, Counsel for Appellee.

Before GASKINS, CARAWAY and KOSTELKA, JJ.

CARAWAY, Judge.

Defendant was tried and convicted of armed robbery. La. R.S. 14:64. He was found to be a third felony offender and was sentenced to life imprisonment. La. R.S. 15:529.1. The defendant now appeals. The defendant's conviction and sentence are affirmed.

Facts

The armed robbery occurred in a parking lot of an apartment complex on November 23, 1998, at approximately 10:00 p.m. The victim, Patricia Martin, testified that she and her friend, Audrey Jackson, asked the defendant, Frederick Lee, for a ride to a convenience store. Although Martin and Jackson were both familiar with the defendant before this incident, they knew him only by his nickname, "Boom." During the conversation, Lee asked Martin if she had any money. Martin produced $30 from her bra and showed it to Lee. After Martin walked with Lee over to an automobile, Lee demanded that Martin give him the money. When Martin resisted, Lee pulled a gun and put it to Martin's head. Martin resisted again, and Lee struck her on her neck. Martin dropped the money. Lee took the money and then, with others, drove away from the parking lot. Jackson, who also knew the defendant as "Boom" before the robbery, corroborated Martin's description of the crime.

Discussion

Sufficiency of the Evidence

Lee first contests the sufficiency of the evidence. He disputes his identification at the crime scene. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writ denied, 00-3070 (La.10/26/01), 799 So.2d 1150.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge's or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 29,253 (La. *363 App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

In cases involving a defendant's claim that he was not the person who committed the crime, under Jackson v. Virginia, supra, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La.1982); State v. Baker, 28,152 (La. App.2d Cir.5/8/96), 674 So.2d 1108, writ denied, 96-1909 (La.12/6/96), 684 So.2d 925.

Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12. The trier of fact has great discretion in assessing the credibility of witnesses. State v. Ervin, 32,430 (La. App. 2d Cir.9/22/99), 747 So.2d 109, writ denied, 99-3201 (La.4/20/00), 760 So.2d 342. Absent internal contradictions or irreconcilable conflict with the physical evidence, the testimony of an eyewitness that he or she observed all of the elements of the offense, coupled with the identification of the defendant as the culprit, is generally sufficient to support a conviction. Id.

To convict the defendant of armed robbery, the state is required to prove that the defendant took something of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

The victim, Martin, and her friend, Jackson, both testified that "Boom" pulled out a gun and demanded Martin's money. Martin was later able to identify Boom as the defendant from a photo lineup provided by the police. Martin and Jackson testified that they were familiar with Boom before this incident and identified Lee as the person they knew as Boom. While Lee suggests that their identification may not be accurate because the robbery occurred at night, Martin testified that the parking lot where the robbery occurred was lighted. Moreover, Lee was close enough to Martin to hold a gun to her head and to strike her in the neck. Therefore, the state sustained its burden to negate the possibility of misidentification, and the evidence from the women's testimony established guilt beyond a reasonable doubt. Accordingly, this assignment is without merit.

Suppression of Photo Lineup

Lee filed a motion to suppress the testimony regarding the out-of-court identification by Martin and Jackson, arguing that his photo was grossly dissimilar to the others in the photo lineup and that other persons with the alias Boom were not included. The trial court denied the motion after a hearing.

When a defendant seeks to suppress an identification, he must show that the procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. State v. Martin, 595 So.2d 592 (La.1992). The U.S. Supreme Court has indicated several factors appropriate for evaluating whether the reliability of an identification may outweigh the suggestiveness of the procedures employed. These factors include: (1) the 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 the victim's prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Neil v. *364 Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Davis, supra.

A lineup is unduly suggestive if the procedure used focuses attention on the defendant. For example, distinguishing marks on the photographs may single out the accused, or suggestiveness can arise if sufficient resemblance of physical characteristics and features does not reasonably test identification. State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied, 594 So.2d 1317 (La.1992). Photographs used in a lineup are suggestive if they display the defendant so singularly that the witness's attention is unduly focused on the defendant. Id. It is not required that each person whose photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is sufficient resemblance to reasonably test identification. State v. Davis, supra.

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Bluebook (online)
807 So. 2d 359, 2002 WL 80863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-lactapp-2002.