State v. Lively

153 So. 3d 1061, 2013 La.App. 3 Cir. 883, 2014 WL 551058, 2014 La. App. LEXIS 341
CourtLouisiana Court of Appeal
DecidedFebruary 12, 2014
DocketNo. 13-883
StatusPublished
Cited by2 cases

This text of 153 So. 3d 1061 (State v. Lively) 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. Lively, 153 So. 3d 1061, 2013 La.App. 3 Cir. 883, 2014 WL 551058, 2014 La. App. LEXIS 341 (La. Ct. App. 2014).

Opinion

GENOVESE, Judge.

Lin this criminal case, Defendant, Isiah Demon Lively, was convicted by a jury of the charges of attempted second degree murder and attempted armed robbery. He was sentenced on the attempted murder conviction to twenty years at hard labor without benefits; he was sentenced on the attempted armed robbery conviction to ten years at hard labor without benefits to run concurrently with the twenty-year sentence. Subsequent thereto, he was adjudicated a second felony offender. The trial court then set aside his twenty-year sentence for attempted second degree murder and imposed a new sentence as a second felony offender of twenty-five years at hard labor without benefits to run concurrently with his ten-year sentence for attempted armed robbery. He has appealed, alleging insufficiency of the evidence, trial court error in not giving his requested jury instruction on eyewitness identification, and trial court error in failing to suppress the victim’s identification of him. Defendant does not appeal his sentences. For the following reasons, we affirm Defendant’s convictions and adjudication.

FACTS

Russell Prejean, a Borden Milk route salesman and victim of these crimes, and his assistant, Ronald Hill, were making a delivery to the A & M Grocery in Jeaner-ette, Louisiana, around 8:30 a.m., on December 18, 2010. The store, as was its custom, paid its bill in cash, and Mr. Preje-an put the cash in his pocket. When they exited the store, Mr. Prejean went to the cab of the truck, while Mr. Hill went to the back of it. When Mr. Prejean reached for the door of the truck to close it, he “felt some material on [his] arm, and [he] thought it was Mr. Hill coming to tell [him] something. So [he] turned around. And when [he] did, [he] looked at a .45 in [his] face.”

¡2The gunman demanded money, and Mr. Prejean told him he had none. The gunman said he had seen Mr. Prejean come out of the store and knew he had money. Mr. Prejean testified, “[T]he next thing I knew[,] I was shot in the leg, and I was on the ground when I realized it.”

Mr. Prejean identified the gunman as a black male with “short dreadlocks and a little bit of facial hair.” He thought the dreadlocks were “probably an inch or two.” When Mr. Prejean had first looked at the gunman, he had noticed a black and white shirt. After he was shot, he noticed the gunman “had orange, light orange, baggy pants.” Mr. Prejean saw the gunman walk across the road and go behind the first house, then he lost sight of him. Mr. Prejean testified that he and the gunman “looked at each other in the face” and that the incident lasted fifteen to twenty seconds.

[1064]*1064The bullet shattered Mr. Prejean’s femur and hit his sciatic nerve. He now has a rod from his hip to his kneecap with two screws; he uses a cane; and, he is unable to work. He spent three weeks in the hospital and then went through extensive rehabilitation.

A few days after the shooting, Mr. Pre-jean briefly saw a picture of Defendant on a television news report. Trial exhibits showed the dates, times, and content of news stories concerning the shooting, including a photograph of Defendant. Mr. Prejean recognized the photo of the man he saw on television as the man who shot him. He thinks he saw it “a couple of days. But [he] was heavily doped up. So if [he] did see it, it was only briefly[,]” and he thought he saw it twice.

Mr. Prejean also identified Defendant in a photo lineup on January 18, 2010. The same photo was used in the news stories and in the lineup. Mr. Prejean then ^identified Defendant at trial as the man who shot him. When asked at trial whether he was certain about his identification, Mr. Prejean replied, “Yes, sir. We were face-to-face in the truck when he pulled the gun in my face. And[,] we looked at each other when he walked across the street. He turned around and looked at me. We looked at each other in the face. That is the man.”

Cherell Raymond testified that on the morning of the shooting she saw a milk truck at the A & M Grocery as she drove her vehicle on Pellerin Street. She said she saw two men getting into the milk truck and a black man in orange pants and a red shirt come around the corner. The man in the orange pants fired a gun at the driver of the milk truck and ran. Ms. Raymond, who was about twenty feet from the scene, hurriedly returned home. She could not identify the shooter beyond a description of his clothes.

Ronald Hill testified that a black man in orange pants, white Pumas (tennis shoes), and a white shirt was on the corner when they arrived at the store. Mr. Hill and Mr. Prejean went in and out of the store a few times, and the man was there each time. Mr. Hill looked at him each time he went in and came out of the store. As Mr. Hill was “putting the empties on the back of the truck,” he heard Mr. Prejean call his name about three times. Mr. Hill went around the driver’s side rear of the truck. He saw the man on the top step of the cab of the truck and Mr. Prejean “laid back” in the driver’s seat. The man jumped or fell from the step, raised the gun, and shot inside the cab of the truck. Mr. Hill ran behind the store, and the man “took off’ in the direction of where he had previously stood. Mr. Hill testified that the man’s hair was in dreadlocks or twists.

Mr. Hill did not see any newscasts about the incident prior to identifying Defendant in a photo lineup on April 12, 2010. He had no conversation with ]4Mr. Prejean about the lineup. He chose Defendant’s photo from the lineup “[a]s soon as [he] saw it[,]” and he was certain Defendant was the shooter. Mr. Hill also identified Defendant at trial. He testified that “[t]he reason I know him is because I seen [sic] his face when he first shot, and I said I would never forget him.”

Shanewillow Williams testified that she knew Defendant for many years and knew him when she saw him. She further testified that on December 18, 2009, she went to the A & M Grocery and saw the milk truck. When she left the store, Defendant was standing in front of the house shown in the photograph admitted into evidence as next door to and across the street from the store. He spoke to her, using her nickname, and asked, ‘What’s up, Mocha?” She responded, “Not much, Isiah[,]” and proceeded down the street. She then [1065]*1065heard a gunshot and saw the handle of a gun going into a pocket of the black hoodie Defendant was wearing along with orange pants. She saw Defendant run into a gap between two houses, and she saw no one else on the street. Ms. Williams went to the police station and identified Defendant as the shooter. On April 14, 2010, she also identified Defendant as the shooter from a photo lineup.

Detective Gloria Lombard of the Jeaner-ette Police Department testified that when she arrived at the scene of the shooting, she found Mr. Prejean lying on the ground alongside the truck. Based on her interviews with Officer Anthony Johnson, Mr. Prejean, and Ms. Williams, she developed Defendant as a suspect. Defendant was then arrested on January 13, 2010, by the St. Martinville Police Department and the Iberia Parish Sheriffs Office. Detective Lombard subsequently identified Defendant at trial as the person she had developed as a suspect.

| fiOfficer Morman Alexander of the Jean-erette Police Department testified that he was on his way to the scene when he heard Defendant’s name on the police radio. He started looking for Defendant in the neighborhood, but was unable to find him. Officer Alexander presented the photo lineup to Mr. Prejean on January 13, 2010, and testified that Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
153 So. 3d 1061, 2013 La.App. 3 Cir. 883, 2014 WL 551058, 2014 La. App. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lively-lactapp-2014.