State v. Robinson

404 So. 2d 907
Supreme Court of Louisiana·Decided September 28, 1981·No. 81-KA-0152·Published·Cited by 76 cases

Opinion

404 So.2d 907 (1981)

STATE of Louisiana
v.
Ray ROBINSON.

No. 81-KA-0152.

Supreme Court of Louisiana.

September 28, 1981.

*908 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Stephen M. Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Raleigh Ohlmeyer, Plaquemine, for defendant-appellant.

COVINGTON, Justice ad hoc.[*]

Ray Robinson was charged by bill of information with two counts of armed robbery in violation of La.R.S. 14:64. After trial by jury, the defendant was found guilty on both counts and sentenced to five years at hard labor without benefit of probation, parole, or suspension of sentence, the sentences to run consecutively. On appeal, the defendant relies on twenty-four assignments of errors for reversal of his conviction and sentence.[1]

FACTS

The defendant was charged with armed robbery of Walgreen's Drug Store, located on Jefferson Highway in Jefferson Parish, on two occasions. On May 29, 1979, a black male walked into the Walgreen store and robbed the cashier, Gina Dubroc, of $77.00 *909 of the store's money. He escaped without apprehension. On June 15, 1979, a black male came into the same drug store and, in the presence of Ms. Dubroc, robbed the pharmacist, Carl Gordon, of $120.00 of the store's money. As the robber was fleeing the scene of the June crime on a bicycle, the store's security guard, Van Clark, who had just arrived for work, gave chase to the robber, who entered an apartment house about five blocks from the drug store. The police then arrived at the apartment house in response to a call. After obtaining the consent of the tenant of the apartment, Charlotte Hollins, the police searched the premises and found the suspect, who was in the process of changing clothes. After searching the apartment, the police took the defendant to Walgreen's, where he was identified by Ms. Dubroc and Mr. Gordon as the perpetrator of the crime.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to suppress the in-field identification of the defendant. The basis for his contention is that this sort of identification denies an accused due process, because it is impermissibly suggestive, leading to a substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In reviewing the constitutional issue of the identification procedure, the United States Supreme Court in Manson v. Brathwaite, supra at 432 U.S. 107, 97 S.Ct. at 2247, made a double inquiry:

(1) Did the police use an impermissibly suggestive procedure in obtaining the out-of-court (in-field) identification?

(2) If so, did that suggestive procedure, under all of the circumstances, give rise to a substantial likelihood of irreparable misidentification?

At the suppression hearing, the testimony revealed that the victims, Dubroc and Gordon, were shown the defendant in handcuffs immediately after his arrest following the June 15, 1979, robbery, and that they made a positive identification of the suspect.[2] The defense urges that the identifications at the scene were impermissibly suggestive because the defendant was handcuffed and in the custody of uniformed police officers when identification was sought by the arresting officers from the victims. The defense argues that these factors, considered with the statement of the officers that they believed the person in their custody to be the robber, established that the in-field or on-the-scene identifications should have been suppressed. Under similar circumstances, in State v. Dauzat, 364 So.2d 1000, 1002 (La.1978), this court considered the identification procedure constitutionally acceptable, and stated:

"Where, as in the instant case, a one-on-one in-field identification is closely associated in time with the commission of the crime and where the suspect is returned to the location of the crime for immediate identification, such identifications have been found permissible. State v. Kelly, 362 So.2d 1071 (La.1978). One reason for declining to disapprove such procedures is that they promote fairness by assuring reliability and the prompt release of innocent suspects. State v. Dunbar, 356 So.2d 956 (La.1978). Applying the totality of the circumstances rule set forth in Neil v. Biggers, supra [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401] (more recently asserted by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 [1977]) we conclude that the record establishes the reliability of the in-field identifications."

We conclude that the record establishes the reliability of the in-field identifications. A review of the record reveals that Gina Dubroc, Carl Gordon and Van Clark had ample opportunity to view the suspect (both Dubroc and Gordon had been victims of robbery by the suspect and had witnessed to other robberies committed by the same person; Clark pursued the fleeing robber for several blocks and testified that he got a *910 good look at the suspect's face from a distance of one-half block and that the suspect conformed to the description furnished him by the assistant manager of the drug store); the witnesses were certain of the identification and positively and accurately identified Robinson; and, although the victims saw the subject only for a short period of time on each occasion, those occasions were such as to make a memorable impression on them. In addition, there was only a lapse of time of a few minutes between the last robbery and the apprehension and identification of the perpetrator of the crime. See State v. Stewart, 387 So.2d 1103 (La.1980). The Manson criteria are satisfied. This is not a case of an identification resulting from impermissible suggestions leading to a likelihood of misidentification. This is not a case of mistaken identity. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error the defendant argues that the trial court erred in failing to grant the defense motion to sever for trial the two counts of armed robbery contained in the bill of information.

In the present case the defendant was tried for two similar armed robberies of the same business establishment, Walgreen's drug store. The nature of the offenses was relatively uncomplicated and there were only two armed robberies with which the defendant was charged; consequently, there was little or no danger that the jury could not distinguish the evidence and intelligently apply the law to each offense. In addition, there was a close connexity in time (one month apart) and the same location between the crimes.

This court said in State v. Washington, 386 So.2d 1368, 1371 (La.1980), that in ruling on a motion for severance:

"...[T]he trial court must weigh the possibility of prejudice versus the important considerations of judicial economy and administration. In determining whether prejudice may result from the joinder, the court should consider whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presentin

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