State v. Lewis

478 So. 2d 665
Louisiana Court of Appeal·Decided October 30, 1985·No. 17333-KA·Published·Cited by 11 cases

Opinion

478 So.2d 665 (1985)

STATE of Louisiana, Appellee,
v.
Jerry G. LEWIS, Appellant.

No. 17333-KA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1985.

*666 Lee E. Ineichen, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James Allan Norris, Jr., Dist. Atty., Robert *667 S. Kennedy, Jr., Asst. Dist. Atty., Monroe, for appellee.

Before HALL, SEXTON and LINDSAY, JJ.

SEXTON, Judge.

After a trial by jury, defendant, Jerry G. Lewis, was convicted as charged of distribution of marijuana, in violation of LSA-R.S. 40:966. He was sentenced to a term of three years imprisonment at hard labor and fined $750 and, in default thereof, to serve six months in jail. From this conviction and sentence, defendant now appeals, urging five assignments of error. We affirm.

The facts which form the basis of this prosecution may be briefly stated. On July 16, 1984, Undercover Officer Zandria Faye Moore of the Metro Narcotics Unit, along with a confidential informant, went to Malone's Cafe in West Monroe where, through a third person, they met the defendant, Jerry Lewis. Lewis and the third person got into the rear of Moore's car. Moore drove several blocks, then stopped the car and turned around to talk with Lewis.

Defendant introduced himself as Jerry Lewis and stated that he worked as a utility meter reader in Ouachita Parish. After some discussion, Lewis opened his pants, reached down and produced several bags of marijuana. Moore purchased one of these bags from the defendant for $20.00.

After concluding the transaction and returning Lewis and the third person to Malone's Cafe, Moore delivered the purchased marijuana to Metro Officer Pat Stewart and told him she had purchased it from a man who told her his name was Jerry Lewis and that he worked as a meter reader. Several days later, Stewart showed a photograph to Moore. Moore identified the person as Jerry Lewis, noting that the hairstyle was different. Defendant was subsequently arrested and charged with distribution of marijuana.

Assignment of Error No. 1

Defendant complains that the trial court erred in admitting two photographs of the defendant into evidence because the defense had not been informed of the existence of the photographs prior to trial in response to a motion for discovery.

Prior to trial, the defendant filed a motion for discovery requesting the right to be informed of any books, papers, documents, photographs or other tangible objects the state intended to use at trial. In response to that inquiry, the state answered that inspection of that evidence would be allowed at a mutually agreeable time and place upon five days written notice.

On motion of the defendant, the court shall order the district attorney to permit or authorize defendant to inspect or examine tangible objects which are within the possession, custody or control of the state and which are intended for use by the state as evidence at the trial. LSA-C.Cr.P. Art. 718. State v. Hooks, 421 So.2d 880 (La. 1982), held that the discovery articles referring to tangible objects do not require the state to give an itemized list of all evidence in its possession and how each was obtained, but rather only require that defendant be allowed to inspect, copy or photograph those documents or reports that are in the control of the state. Hooks also found that the state's response that defendant would be allowed to inspect at his convenience any physical evidence relevant to his case was adequate compliance with the requirements of Articles 718 and 719. See also State v. Volpe, 447 So.2d 48 (La.App. 1st Cir.1984), writ denied, 450 So.2d 967 (La.1984).

Thus, in this case the defense asked to inspect the items listed in its motion and the state agreed. The defense did not seek a supplemental response from the state detailing the items available. Most importantly, the defense did not avail itself of the inspection opportunity made available by the state. Under these circumstances, the defendant should not now be heard to complain of the admissibility of physical items which were readily available for inspection.[*]*668 This assignment of error lacks merit.

Assignment of Error No. 2

Secondly, appellant complains that the trial court erred when it denied his motion to suppress an identification of the defendant by the state's witness, undercover officer Zandria Faye Moore. The witness testified that she had been shown one photograph of the defendant by a fellow officer shortly after the offense and was later shown another photograph. Defendant asserts that the showing of one photograph to Moore was unduly suggestive and led to a likelihood of an irreparable mistaken identification at the trial.

Due process prohibits the conducting of an identification procedure in a manner which is unnecessarily suggestive and conducive to an irreparable mistake in identity. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In testing the constitutionality of an out of court identification, the suggestiveness of the identification procedure itself must be first examined. State v. Guillot, 353 So.2d 1005 (La. 1977); State v. McLeland, 456 So.2d 633 (La.App. 2d Cir.1984), writ denied, 461 So.2d 312 (La.1984); State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983), writ denied, 442 So.2d 460 (La.1983).

One on one line up procedures are not favored. State v. Newman, 283 So.2d 756 (La.1973). However, whether or not a suggested identification occurred depends on all the circumstances. State v. Johnson, 333 So.2d 223 (La.1976). In State v. Johnson, supra, the Supreme Court stated that the presentation to the victim of two photographs, one of each defendant, after defendants had been taken into custody, was a practice not to be lightly condoned considering the strong potential for misidentification.

In the instant case, the undercover police officer gave the name and occupation of the defendant to Detective Pat Stewart of the Metro Narcotics Unit shortly after the drug buy. Three days later, Detective Stewart showed a picture to Officer Moore and asked her if that was Jerry Lewis. She responded that it was Jerry Lewis but that his hairstyle was different from when she had seen him before. Later Moore was shown another picture, an enlargement of Lewis's driver's license. She made a positive identification of the defendant on each occasion.

At this juncture it is important to reiterate and underscore the fact that the witness in this instance was a trained police officer engaged in a controlled narcotics buy. She was not the victim of a crime. The nature of her contact and observation of defendant diminishes the suggestiveness of the procedure and in that significant respect, this case is factually distinct from Neil, supra; Guillot, supra; Johnson, supra; Newman, supra; McLeland, supra; and Clark, supra. As we noted in McLeland, it is the likelihood of misidentification which creates a due process violation, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, supra. Therefore, unless this marginally suggestive display created

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