State v. Lewis

489 So. 2d 1055
Louisiana Court of Appeal·Decided May 28, 1986·No. KA 85 1468·Published·Cited by 38 cases

Opinion

489 So.2d 1055 (1986)

STATE of Louisiana
v.
Leslie LEWIS.

No. KA 85 1468.

Court of Appeal of Louisiana, First Circuit.

May 28, 1986.

*1056 Steven Laiche, Asst. Atty. Gen., New Orleans, for State.

Glynn Voisin, Indigent Defenders Office, Houma, for Leslie Lewis.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

JOHN S. COVINGTON, Judge.

Leslie Lewis (defendant) was charged by separate bills of information with the aggravated burglary, of two separate residences, in violation of LSA-R.S. 14:60. Lewis pled not guilty and elected trial by jury of the two offenses, consolidated for trial. The jury returned a responsive verdict of guilty of simple burglary of a residence belonging to Carl Donaldson, but found defendant not guilty of the other charge. The state filed a multiple offender bill, and after a hearing, the defendant was determined to be a second felony offender. Thereafter, defendant was sentenced to sixteen years at hard labor. He has appealed, alleging six assignments of error, as follows:

1. The trial court erred in allowing the state to introduce the photographic lineup into evidence.

2. The trial court erred in finding probable cause at the preliminary examination.

3. The trial court erred by not allowing a severance by the defense.

4. The jury verdict was contrary to the law and the evidence.

5. The multiple billing process was illegal.

6. The trial court erred in imposing an excessive sentence.

The following facts are derived from the trial testimony of several state witnesses. On the evening of January 7, 1984, Mrs. Carl Donaldson and her daughter, Nicky, left their residence located at 3209 Camellia Avenue, in Houma, Louisiana. When they *1057 returned home approximately one hour later, they noticed that every light inside the house was turned on. Nicky specifically remembered that, before they left, every light inside the house was turned off and all the doors were locked. As Mrs. Donaldson approached the door, a man came running out of the house, bumping into the door as he ran past her. The man ran out into the yard and down the street. Since he passed within four feet of both Mrs. Donaldson and her daughter, they were able to get a very good look at the defendant. The lights inside the house, the front porch light, and the street light enabled them to see the defendant clearly.

When the police arrived at the Donaldson residence, they found five shotguns and a microwave oven in the backyard. Their investigation determined that the burglar had gained entry by breaking the glass in the storm door. Nicky Donaldson described the burglar as a tall, well built black male, with big lips and short hair. She told the police officers that he was wearing white tennis shoes, blue jeans and a jacket.

Based on this description, Detective Freddie Williams compiled a photographic lineup of six black males, including the defendant. Three days after the burglary, this lineup was shown to Mrs. Donaldson and her daughter by Detective Ben Ledell. Detective Ledell testified that both women picked photograph number four, which was a picture of the defendant. Based on these identifications, the defendant was later arrested.

ASSIGNMENT OF ERROR NUMBER ONE:

In this assignment of error, defendant argues that the trial court erred in denying his motion to suppress and allowing the photographic lineup to be introduced into evidence.

Before trial, the trial court conducted a hearing on the defendant's motion for preliminary examination and motion to suppress. These motions were combined because they both dealt primarily with the photographic lineup. Defendant argued that the photographic lineup should be suppressed because it was unduly suggestive. He also argued that there was no probable cause to hold him based solely upon the fact that his picture was selected from a photographic lineup by Mrs. Donaldson and her daughter. The trial court found probable cause to hold the defendant and denied the defendant's motion to suppress the photographic lineup.

A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Chaney, 423 So.2d 1092 (La.1982). The pictures used in a photo array should not display the defendant so singularly that the witness' attention is unduly focused upon the defendant. State v. Guillot, 353 So.2d 1005 (La.1977). A strict identity of characteristics is not required; rather, a sufficient resemblance to reasonably test the identification is necessary. This determination is made by examining articulable features of the pictures or persons used: height, weight, build; hair color, length and texture; facial hair; skin color and complexion; and the shape and size of the nose, eyes, lips, etc.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the U.S. Supreme Court considered these five factors in determining whether a photographic identification was reliable:

(1) the witness' opportunity to view the defendant at the time the crime was committed;

(2) the degree of attention paid by the witness during the commission of the crime;

(3) the accuracy of any prior description;

(4) the level of the witness' certainty displayed at the time of identification; and

(5) the length of time elapsed between the crime and the identification.

Even should the identification be considered suggestive, this alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification *1058 which violates due process, not merely the suggestive identification procedure. State v. Guillot, supra.

Applying the Manson analysis to the facts of the instant case, we find that the identification of the defendant by Mrs. Donaldson and her daughter was reliable. Mrs. Donaldson and her daughter had a very good opportunity to view the defendant as he ran past them. The lights inside the house, the front porch light, and the street light enabled them to clearly see the defendant. Nicky Donaldson obviously paid close attention to the defendant as he ran past her, since she was able to give an accurate physical description as well as a description of the defendant's clothes. Although Mrs. Donaldson was not completely positive that photo number four (the defendant) was the man who had burglarized her home, Nicky Donaldson positively identified photo number four as being the perpetrator of this offense. Finally, the identifications were made only three days after the commission of the offense.

Furthermore, the identification procedure did not produce the likelihood of misidentification, because Mrs. Donaldson and her daughter viewed the photo lineup separately. Detective Ledell testified that he did not suggest which photo Mrs. Donaldson and her daughter should pick, nor did he say anything to them while they were viewing the photo lineup.

After examining the photo array, we have determined that there is no undue suggestion. See Guillot, supra. The photo lineup contains pictures of six black males. All of them have short, dark hair, and large lips. They are all dressed casually and appear to be of a similar height, build, and age group. Considering the above, we find that t

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