State v. Tucker

591 So. 2d 1208, 1991 WL 256244
CourtLouisiana Court of Appeal
DecidedDecember 6, 1991
Docket22961-KA
StatusPublished
Cited by46 cases

This text of 591 So. 2d 1208 (State v. Tucker) 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. Tucker, 591 So. 2d 1208, 1991 WL 256244 (La. Ct. App. 1991).

Opinion

591 So.2d 1208 (1991)

STATE of Louisiana, Appellee,
v.
Freeman E. TUCKER, III, Appellant.

No. 22961-KA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1991.
Writ Denied March 26, 1992.

*1211 John M. Lawrence, Indigent Defender Office, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Catherine M. Estopinal, Asst. Dist. Atty., Shreveport, for appellee.

Before MARVIN, HIGHTOWER, and STEWART, JJ.

HIGHTOWER, Judge.

Defendant, Freeman E. Tucker, III, pled not guilty after being accused by bill of information with three armed robberies, LSA-R.S. 14:64. A jury convicted him of two counts, as charged, and one count of first degree robbery, LSA-R.S. 14:64.1. The trial judge ordered imprisonment at hard labor for 45 years on each armed robbery and 30 years on the other offense, with all three terms to be served consecutively and without benefit of probation, parole or suspension of sentence. Defendant now appeals. Finding no merit in his 17 assignments of error, we affirm the convictions and sentences.

FACTS

At approximately 9:30 p.m. on April 16, 1988, a man robbed Sue Isbel, the cashier at Gulf Magik Mart on Youree Drive in Shreveport. The perpetrator, later identified as defendant, entered the store and asked for a pack of Salem Lights. As the clerk placed the cigarettes on the counter, the customer removed his hands from his pockets, revealing that he wore surgical gloves. In response to Ms. Isbel's surprised reaction, defendant quickly grabbed her from behind. Placing an ordinary serrated steak knife to her throat with one hand and covering her eyes with his other hand, he forced her to open the cash register. He then proceeded to take from the store an amount of cash and several blank money orders, together with a green Commercial National Bank money bag.

To the authorities, Ms. Isbel soon reported the culprit as a black male, wearing a sweater-type jacket and a "Gilligan-type" hat. When subsequently asked to view a video lineup, she made no identification. However, upon attending a physical showing of several males at the jail on May 13, 1988, she selected defendant as most resembling the offender, but could not be positive. Later, while waiting to testify at *1212 a hearing on December 19, 1988, upon observing defendant and other prisoners enter the courtroom, she became convinced he committed the crime. At trial, she testified categorically that he robbed her on April 16, 1988.

At approximately 10:00 p.m. on May 1, 1988, a man entered the Pel-State Fina Station on Flournoy-Lucas Road in Shreveport and removed a soft drink container from the cooler. Placing the bottle on the counter, he quickly sprang into the check-out area and positioned a knife to the throat of the cashier, Catherine Ramsey. After demanding the store's money and obtaining approximately $100 in small bills, the robber fled when another customer arrived to purchase gasoline. Ms. Ramsey could never make a positive identification, but fingerprints taken from the bottle later matched those of defendant.

On May 11, 1988, Gracey Wyatt worked as cashier at a Texaco gas station on Mansfield Road in Shreveport. At approximately 9:00 p.m., a black male entered and requested transmission fluid of a specific type. Discovering the store had none, he instead bought a Coke and left. A short time later he returned, saying he had finally decided to buy the product in stock. When Ms. Wyatt momentarily turned, the man grabbed her from behind, quickly knocking away her glasses and covering her eyes with his hand. The assailant then held a sharp instrument against her neck, and verbally threatened to cut her throat if she did not give him the store's money. After receiving cash from the register and a special drawer, he forced the victim into a storage room and fled the scene. An entering customer observed the exiting robber and his vehicle.

Earlier on the evening of May 11, as part of a surveillance effort designed to counter the rash of gas station robberies,[1] Detective Travis Hayes began patrolling his assigned area of the city. About 9:20 p.m., he heard a police radio report of the Texaco gas station robbery. It described the perpetrator as a black male, approximately 5 feet 7 inches tall, weighing about 170 pounds, wearing a blue khaki shirt and blue pants, and driving an older model yellow car (possibly a Cadillac or Lincoln) with black side molding. Previous robberies had also provided a general description indicating the offender wore a hat.

About an hour after the report, Det. Hayes observed such a vehicle traveling eastbound on Pierremont Avenue, driven by a black male wearing a "Gilligan-type" or roll-up style hat. The officer followed and requested a license check, which soon disclosed that the car displayed expired tags. Upon stopping the 1975 Cadillac to issue a traffic citation, he discovered that the license plate had actually been altered to make the 1986 date read "1988," and also that the inspection sticker had expired. Neither could the driver produce a current registration, nor any proof of ownership.

Det. Hayes eventually issued three citations. Following standard departmental procedure with reference to impoundment, he radioed for a wrecker and inventoried the contents of the car. Among other items, he located a green CNB bank bag, a quart of Texaco motor oil, and a serrated steak knife. Beneath the driver's seat and stuffed into another area, he discovered three ten-dollar bills, four five's, and twenty-five one's. Shortly, the detective allowed retrieval of a tool box and returned the cash to the driver, whom he then transported home.

From a photographic lineup shown her the next day, Ms. Wyatt positively identified the driver, Freeman E. Tucker, III, as the perpetrator of the Texaco robbery. Upon subsequently executing arrest and search warrants, police quickly linked defendant to all three offenses.

DISCUSSION

Suppression of Identifications

Only Ms. Wyatt made a positive identification from the photographic lineup; however, at trial, both she and Ms. Isbel pointed out defendant as the person who robbed *1213 them. In the first assignment of error, defendant complains of the denial of his motion to suppress evidence of the photographic lineup, which he challenged as being impermissibly suggestive. Specifically, he maintained his picture to be the only one "where teeth are showing." He also sought to have the trial court suppress evidence stemming from the video identification process, as well as any in-court identifications by the two mentioned victims. A separate but related assignment, number eight, concerns solely the introduction into evidence of the photo display itself.

Reliability, as shown by the totality of the circumstances, is the linchpin when deciding admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In attempting to suppress a pre-trial identification, a defendant must first show a suggestive identification procedure and, secondly, demonstrate the likelihood of misidentification by the eyewitness. Thus, even in cases of a suggestive out-of-court procedure, identification testimony will be admissible if found to be reliable under the total circumstances. Manson, supra; State v. Guillot, 353 So.2d 1005 (La.1977), writ denied, 367 So.2d 864 (La. 1979); State v. Mims, 501 So.2d 962 (La. App. 2d Cir.1987).

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Bluebook (online)
591 So. 2d 1208, 1991 WL 256244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tucker-lactapp-1991.