State v. AndrewsState v. Andrews
Defendant, Tyrone Andrews, was charged by bill of information with having committed an aggravated battery in violation of
ASSIGNMENT OF ERROR NO. 1:
Defendant contends that the trial court committed error when it allowed the prosecution to use peremptory challenges to systematically exclude blacks from the jury over defense counsel‘s objections.
A defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks from the jury unless there is a systematic exclusion over a period of time. State v. Brown, 371 So.2d 751 (La.1979). The burden is on the defendant to establish a prima facie showing of such exclusion. State v. Williams, 442 So.2d 740 (La.App. 1st Cir.1983). A showing by the defense that peremptory challenges were used to exclude blacks in a particular cаse is not sufficient to establish a violation of the Fourteenth Amendment Equal Protection Clause. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
At trial, during early voir dire, the State used two of its peremptory challenges exempting two blacks. In response, defense counsel objected and moved fоr a mistrial on the ground of systematic exclusion of blacks. Defense counsel then used two of defendant‘s peremptory challenges saying, “I must exercise peremptory challenges to clear the balance of the panel and try again.” As vоir dire continued, the State used three more of its peremptory challenges. Each time defense counsel objected on the same grounds. However, defendant has made no further showing of any pattern of systematic exclusion of blacks over a period of time, neither at trial nor in brief.
Defendant does not tell us what the final composition of the jury was in this case, nor does the record so reveal. Moreover, we have examined the voir dire and find no evidence of exclusion on racial grounds of persons from the jury by the State. The trial judge was correct in allowing the prosecution to exercise its peremptory challenges in this case.
There is no merit to this assignment of error.
Defendant alleges that the trial court erred when it denied defendant‘s request to dim the lights in the courtroom to recreate and demonstrate for the jury the lighting conditions at the time of the alleged incident. Defendant also contends that because of the poor lighting conditions at the scene of the incident the identification of defеndant by an eye witness to the crime was unreliable and thus defendant‘s out-of-court identification held a significant chance of misidentification.
At trial, during cross examination of the victim, defense counsel offered to dim the lights in the courtroom in an effort to recreate the scene of the crime. The State objected on the grоunds that such demonstration was irrelevant to the matter at hand.
The victim‘s testimony, which had already been admitted, was that it was dark at the time he was stabbed and he could not identify his assailant. At the time it made its objection, the State agreed to stipulate that it was dark. Although defense counsel seemed to accept the stipulation, he again reiterated his request to dim the lights, which was denied by the trial judge with the comment that the demonstration might be relevant to the testimony of another witness but here defense cоunsel has not shown sufficient relevance to the testimony at hand. We find no abuse of the trial judge‘s wide discretion by this ruling. The offer of demonstrative evidence was properly denied at that time.
Subsequently at trial, defense counsel again requested to be аllowed to demonstrate the lighting conditions at the scene of the crime by dimming the lights in the courtroom. This second request was made during the cross-examination of State‘s witness, Craig Whittington, who had been present at the scene of the crime. Defense counsel‘s request was granted over objection by the State. The lights were dimmed in the courtroom to the point at which witness Whittington agreed was the degree of darkness at the scene of the crime.
Prior to the demonstration witness Whittington had identified one of the participants in the fight, Thaddeus Jones, and had also testified to the color and kind of clothes defendant was wearing at the time of the incident. Therefore, the issue of degree of darkness was relevant to witness Whittington‘s testimony and defense counsel‘s demonstrаtion was properly admitted into evidence at that time.
In sum, there was ample evidence before the jury to make sufficiently clear the lighting conditions under which the witnesses at the crime scene had observed the incidents and the participants therein.
We must next determine likelihood of misidentification of defendant. In so doing, the evidence must be weighed in the light of the factors indicating reliability as set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1979) and restated in State v. Clark, 437 So.2d 879 (La.App. 2nd Cir.1983), writ denied, 442 So.2d 460 (1983), where the court held that an identification procedure is reliable if the following factors arе met: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the witness’ prior description of the criminal; 4) the witness’ degree of certainty; 5) the time between the crime and the сonfrontation.
Applying the Manson analysis to the instant case reveals:
1) The opportunity of the witness to view the criminal at the time of the crime: The witness who identified defendant had ample light to view the participants including defendant in the incident and were sufficiently close to accurately notice details of clothing and physical features.
3) The accuracy of the witness’ prior description of the criminal: Each identifying witness noted the same details and accurately described the same persons viewed and confronted at the police station as the ones involved in the crime.
4) The witnesses’ level of certainty: Each identifying witness had no hesitancy in identifying defendant either in-court or out-of-court.
5) The time between the crime and the confrontation: The out-of-court identification of defendant took place at the police station within 2 to 2½ hours following the crime.
It is clear in this case that the Manson criteria have been met. Thus the out-of-court identification of defendant was based upon reliable testimony with no significant chance of misidentification.
There is no merit to these assignments of error.
ASSIGNMENT OF ERROR NO. 12:
Defendant complains that the trial court‘s failure to find Act 527 of 1975 unconstitutional, which is now
In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state‘s evidence or of all the evidеnce, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant‘s motion for a judgment of acquittal at the close of the state‘s case, the defendant may offer its evidence in defense.
Under
The authority to grant a directed verdict of acquittal in a bench trial under
Thus defendant‘s contention that defendant was denied his due process rights by the application of the 1975 amendment to
ASSIGNMENT OF ERROR NO. 13:
Defendant contends that the trial court abused its discretion when it imposed an excessive sentence on defendant, arguing that, as defendant was a first felony offender, the trial judge failed to recognize defendant‘s potential for rehabilitation through correctional services other than сonfinement.
Defendant was sentenced to five years at hard labor. The maximum sentence possible following conviction for aggravated battery under
Our review of the transcript of the sentencing hearing convinces us the trial judge considered the fact that defendant had had only two prior convictions for driving while intoxicated. However, the trial judge noted that the action of defendant in stabbing the victim herein could have resulted in death and, further, that the Division of Probation and Parole recommended confinement. Thе trial judge felt that there was an undue risk that, during the period of suspended sentence or probation, defendant would commit another crime.
The trial judge has adequately complied with the sentencing guidelines set forth in
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 14:
Defendant contends that the trial court erred when it denied defendant‘s motion for directed verdict, arguing that the State failed to prove the elements of the crime beyond a reasonable doubt. Specifically, defendant contends that no proof was offered of the use of a dangerous weapon and that no witness of the State could identify the accused as the assailant.
Aggravated battery is a battery committed with a dangerous weapon.
Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.
The “dangerous weapon” for purposes of
By Acts 1982 No. 144, now
The State has sufficiently proved the elements necessary to find defendant guilty of aggravated battery.
This assignment of error has no merit.
Having found no merit in any of the assignments of еrror affected by defendant, this court is of the opinion that the finding of the trial court and the sentence imposed be affirmed.
AFFIRMED.