State v. Mosby

581 So. 2d 1060, 1991 WL 91066
CourtLouisiana Court of Appeal
DecidedMay 16, 1991
DocketKA 90 0920, KA 90 0921
StatusPublished
Cited by9 cases

This text of 581 So. 2d 1060 (State v. Mosby) 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. Mosby, 581 So. 2d 1060, 1991 WL 91066 (La. Ct. App. 1991).

Opinion

581 So.2d 1060 (1991)

STATE of Louisiana
v.
James Kevin MOSBY (Two Cases).

Nos. KA 90 0920, KA 90 0921.

Court of Appeal of Louisiana, First Circuit.

May 16, 1991.

*1062 Bryan Bush, Dist. Atty., Baton Rouge, by Suzan Ponder, Asst. Dist. Atty., for plaintiff/appellee.

Office of the Public Defender, Baton Rouge, for defendant/appellant.

Before COVINGTON, C.J., and LANIER and GONZALES, JJ.

LANIER, Judge.

The defendant, James Kevin Mosby, was charged by bill of information with simple robbery, in violation of La.R.S. 14:65. He pled not guilty and, after trial by jury, was found guilty as charged. Subsequently, the defendant was adjudicated a second felony habitual offender. Thereafter, he received a sentence of fourteen years at hard labor, without benefit of parole, probation, suspension of sentence, or good time. This appeal followed.

FACTS

At approximately 10:00 a.m. on March 9, 1987, the victim, Guy McFarland, drove to the Louisiana National Bank (LNB) located in the Republic Tower Building at 5700 Florida Boulevard in Baton Rouge, East Baton Rouge Parish, Louisiana. As he exited his vehicle, he observed a young, black male (later identified as the defendant) standing outside. McFarland made eye contact with the young, black male, who quickly looked away and walked off. McFarland entered the lobby of the bank, intending to make a deposit from his seafood business. He carried an LNB bank bag containing approximately $4,000.00 in cash and checks. As he stood in line in the lobby, the same person he had observed outside only a few minutes earlier approached from behind, grabbed the bank bag, and ran to the door. As the bag was taken from him, McFarland spun around and observed the perpetrator's side and the profile of his face. McFarland immediately gave chase. The perpetrator ran into a locked glass door and shattered it. He then slid to the other door, exited, ran through the parking lot into some adjacent apartments, and escaped in a maroon, late model Chevy Nova. McFarland chased the perpetrator until he drove off and obtained a partial license plate number. McFarland then returned to the bank and gave a description of the perpetrator to bank officials and the police.

*1063 Baton Rouge Police Detective Greg Phares showed McFarland a photographic lineup a few weeks after the robbery which contained pictures of six black males, including a suspect named Michael Jackson. McFarland identified no one in this lineup. Thereafter, the defendant's former girlfriend, Diane Johnson, informed Det. Phares that defendant had committed a bank robbery. After receiving this information, Det. Phares prepared another photographic lineup containing pictures of six black males, including a picture of the defendant. He exhibited this photographic lineup to McFarland on June 1. McFarland immediately identified the defendant's picture and stated that he was the perpetrator. Subsequently, the defendant was arrested. Det. Phares testified that the defendant unsuccessfully attempted to evade arrest by hiding in an attic. Approximately two months after identifying the defendant in the photographic lineup, McFarland identified the defendant at a physical lineup held at the Parish Prison.

At the trial, McFarland testified about the facts of this offense and his identifications of the defendant in the photo lineup and the physical lineup. He also made an in-court identification of the defendant.

Det. Phares testified about his investigation of the robbery, his preparation of the two photographic lineups, and McFarland's identification of the defendant's picture in the second photographic lineup. Lisa Lusk, who was on the tenth floor of the Republic Tower Building, testified that she observed a white male chasing a black male outside the building on the morning of the robbery. However, she testified that she was never able to identify the perpetrator.

Diane Johnson, the defendant's former girlfriend and the mother of his daughter, also testified at the trial. Although she was originally called as a State witness, the prosecutor requested that she be declared a hostile witness when she allegedly gave testimony which differed from the information previously given to the prosecutor. The trial court granted this request and ruled that Ms. Johnson was a hostile witness. Although both the questioning of Ms. Johnson and her answers to these questions were somewhat difficult to follow, Ms. Johnson admitted that the defendant told her he had committed a robbery. When the prosecutor attempted to establish which bank the defendant robbed, Ms. Johnson replied that it was an LNB bank on Airline Highway. Ms. Johnson testified that the defendant laughingly admitted to robbing a bank during a telephone conversation with her which took place while the defendant was in the Parish Prison.

In an attempt to establish that Ms. Johnson's trial testimony changed and/or omitted certain details which Ms. Johnson had previously related to the prosecutor, including the source of Ms. Johnson's information about the defendant's robbery, the location of the robbery, whether or not a glass door or window was broken during this robbery, and whether or not the bank personnel or a patron therein was robbed, the prosecutor introduced into evidence State Exhibit 16, a letter written by the defendant (while in jail) to Ms. Johnson. In State Exhibit 16, the defendant indicates that Ms. Johnson should "tell [the defense attorney] the truth, that you told the police you Heard I pulled a robbery. And hearing I pulled a robbery is called hear-say (sic) evidence. And (sic) cant (sic) be used against me. Therefor (sic) you cant (sic) be called to the stand. Its (sic) very, very important that you tell the truth that you heard + not that I told you this out my mouth." However, when the prosecutor asked Ms. Johnson whether or not the defendant had ever attempted to persuade her not to testify, Ms. Johnson replied that the defendant only indicated that she should tell the truth.

Defendant's grandmother, Helen Brooks, and his aunt, Nell Johnson, testified that the defendant lived with them at the time this robbery was committed. They did not establish an alibi because they could not testify that the defendant was definitely at home on the morning of this offense.

The defense theory of the case was that the instant robbery was committed by someone other than the defendant. Before trial and again during the trial, the defense *1064 attempted to secure a trial court ruling permitting the introduction of evidence of similar offenses. Specifically, the defense attempted to introduce evidence that another individual had perpetrated similar simple robberies of bank patrons, at nearby banks, on January 7, 1987, and April 1, 1987.

ADMISSIBILITY OF IDENTIFICATIONS

(Assignment of error 1)

The defendant contends that the trial court erred in denying his motion to suppress photographic and physical identifications. Specifically, he argues that the photographic lineup was suggestive and, therefore, the subsequent physical lineup identification and in-court identifications were tainted by the initial photographic lineup.

A defendant attempting to suppress an identification must prove that the identification was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. State v. Daughtery, 563 So.2d 1171 (La. App. 1st Cir.), writ denied, 569 So.2d 980 (La.1990). If a witness' attention is focused on the defendant during the lineup, the identification procedure may be unduly suggestive. State v. Collins,

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Cite This Page — Counsel Stack

Bluebook (online)
581 So. 2d 1060, 1991 WL 91066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mosby-lactapp-1991.