STATE of Louisiana, Appellee, v. Demetrious BROWN, Appellant.
No. 22818-KA
Court of Appeal of Louisiana, Second Circuit
October 30, 1991
588 So. 2d 1317
Before SEXTON, NORRIS and LINDSAY, JJ.
William J. Guste, Jr., Atty. Gen., Paul J. Carmouch, Dist. Atty., Kenneth B. Pennywell and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for plaintiff, appellee.
The defendant, Demetrious Brown, was charged by bill of information with armed robbery,
Factual background
The victim, Tracy Vandiver, stopped at the Shell Service Station at 3300 Hearne Avenue in Shreveport on Christmas eve, December 24, 1989. En route to Doyline, she stopped only to use the phone. As she was completing her call, two black men walked up. One stood behind her, poked what felt like a gun barrel in her back and said, “Don‘t look back.” The other, standing in front, held a .45 semi-automatic pistol close to her face and said, “Empty your pockets.” Though she was terrified, Ms. Vandiver got an excellent view of the man in front of her. She dropped her wallet, which had $65 in it, some change and the keys to her 1988 Dodge Ram pickup. The men picked up the money and keys and scurried behind the Shell Station toward an alley. Ms. Vandiver ran into the station and told the cashier to call the police.
Officer Wilson, who was on patrol in the area, testified he received the call at 7:50 p.m. and arrived at the scene within three minutes. He spoke to Ms. Vandiver, getting information for his offense report. Ms. Vandiver admitted telling him that the man who stood in front of her was roughly her own height, 5‘6” or 5‘7“, but this detail is not in the report. On foot, Officer Wilson could not find any suspects in the area; he noted, however, that the place was well lighted. He left to circle the area in his patrol car.
Moments later Ms. Vandiver stepped out of the Shell Station to remove some papers from her truck. She suddenly realized that two men, who resembled her assailants, were sitting in the truck; the man behind the wheel was wearing a beige jacket. They drove the truck down the alley. Ms. Vandiver ran to the street and flagged down Officer Wilson, who was driving by.
Shortly before midnight Officer Grantham observed a Dodge truck that fit the description of Ms. Vandiver‘s except for the license plate. There were three men in the cab and one in the bed. With the assistance of two other officers, Grantham engaged the truck in a high speed chase in Bossier City. The truck eventually wrecked and the three men in the cab fled on foot; they were not found. The person in the bed of the truck, a juvenile named McCoy, did not escape. He told officers that he was not involved in the robbery but that he knew someone who was. McCoy said it was a 17-year old named “Brown,” who was 5‘11“, slender and lived on West College Street. Detective Childers contacted Shreveport Police‘s Youth Division and learned that Demetrious Brown met the description. He prepared a photo line-up that included Brown‘s picture.
On January 3, 1990 Detective Childers met with Ms. Vandiver, who now described her assailant as 5‘11” or 6‘. He showed her the line-up; she positively identified Brown as the robber, without hesitation. Childers obtained a warrant and arrested Brown
At trial in April 1990, Ms. Vandiver again positively identified Brown as the assailant who stood in front of her. She admitted describing him as 5‘6” or 5‘7“, but said she could not estimate his height because she was afraid. She insisted, however, that her assailant had “a face I will never forget,” and identified Brown as that assailant. She also testified that when she viewed her truck at the impound lot, the license plate was changed.
For the defense several witnesses testified that they were at the party on December 24, that Brown was there too and he did not leave during the course of the evening. Ms. LaCour testified that she was elsewhere and did not get to the party until 9:00 or 9:30 p.m. Mrs. Brown did not testify; the juvenile, McCoy, was subpoenaed by both state and defense but was not present when called.
Brown originally filed eight assignments of error with the trial court. Three of these were neither argued nor briefed and are abandoned. URCA Rule 2-12.4; State v. Williams, 338 So.2d 672 (La.1976).
Discussion: Sufficiency of evidence
By his second, third and fourth assignments Brown urges the verdict was contrary to the law and evidence. He argues the jury could not reasonably find him guilty because of the “serious discrepancies” between the description given by Ms. Vandiver and his own physical characteristics. He also argues the verdict was unreasonable because Ms. Vandiver‘s account of the robbery lacked substantial corroboration in light of the numerous alibi witnesses.
An allegation that the verdict is “contrary to the law and the evidence” is, strictly speaking, grounds for seeking a new trial.
Armed robbery is defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
Ms. Vandiver testified that two men, one of whom was armed with a .45 revolver, forced her to give them money and keys that she had on her person. This evidence proves all the essential elements of the offense. The truck was later recovered.
The remaining question is identification. In brief Brown cites State v. Davis, 409 So.2d 268 (La.1982), which sets out guidelines to exclude an out-of-court identification on a motion to suppress. In the instant case Brown did not file a motion to suppress or even object to the evidence of the photo line-up. The argument is therefore waived as far as the photo line-up is concerned.
An in-court identification is generally permitted provided the source of the identification is independently based. State v. Madison, 345 So.2d 485 (La.1977); State v. Evans, 512 So.2d 615 (La.App.2d Cir.1987), writ denied 516 So.2d 367 (1988). The court may consider the prior acquaintance of the witness with the accused, the length of time the witness observed the perpetrator, and the circumstances under which the observations were made. State v. Newman, 283 So.2d 756 (La.1973), cert. denied 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974); State v. Evans, supra, and citations therein. Here, Ms. Vandiver did not know the accused. However, she had a close look at her assailant‘s face during the course of the robbery, and this occurred in an area that was well lighted. Ten days after the robbery she quickly and positively picked Brown in a photo line-up. True, her estimate of her assailant‘s height was four or five inches shorter than Brown (as shown by the PSI, not the trial transcript), but she explained that she was concentrating on the man‘s face rather than his exact height. She also explained that the cowboy boots she was wearing that night made her a little taller. Most notably, she stressed that she could not forget the assailant‘s face and she was positive that Brown was the man. Days later, she gave Detective Childers a more accurate description. Given these facts, the jury was entitled to discount the discrepancy and find that Brown was one of Ms. Vandiver‘s assailants.
Finally Brown cites the testimony of the various defense witnesses who all testified he was at a party when the offense occurred. At trial, the state showed that every one of the persons at the party was either a friend or relative of Brown‘s. On the whole, the alibi testimony is rambling and hard to piece together. Two of Brown‘s aunts, Sheila Jones and Veronica LaCour, testified that Brown was with them at Sheila‘s house until 8:30 or 9:30, when he left for the party; and yet Ms. Jones admitted that Brown was in and out while Ms. LaCour said he was there with her the whole time. Other witnesses, like Beverly Burgy, Arthur Jones and Reggie King, admitted that Brown did not arrive at the party until 8:45 or 9:00. Given that the Shell Station was quite close to the party, the jury could have found that the witnesses saw Brown either at Sheila‘s house before, or at the party after, he committed the robbery. We have no basis for rejecting this credibility call. State v. Holland, supra.
Ms. Vandiver‘s testimony was sufficient to prove the elements of the offense and the identity of the offender. The alleged inconsistency in her description, and lack of corroborating proof and the alibi evidence, viewed in light most favorable to the state, do not create reasonable doubt. These assignments do not present reversible error.
Excessive sentence
By his first assignment Brown urges the trial court erred in imposing an excessive sentence of 15 years at hard labor. He argues that the trial court failed to provide adequate consideration for his youth and lack of an adult criminal record.
The test of excessiveness is two-tiered, the first being a review of the trial court‘s compliance with the mandatory sentencing guidelines of
The second tier is constitutional excessiveness. A sentence violates
Brown‘s conduct placed a victim in substantial danger at the point of a gun and deprived her of cash that was never recovered and a truck that was wrecked. It is all the more blameworthy, coming from a defendant with a history of violence and theft. At the same time, Brown‘s youth counsels in favor of a lower-range sentence. The sentencing range for armed robbery is not less than five and not more than 99 years at hard labor, all without benefit of parole, probation or suspension of sentence.
Moreover, our review of the cases cited in brief does not alter our conclusion. We would only cite the more apposite case of State v. Thomas, 468 So.2d 592 (La.App.2d Cir.), writ denied 474 So.2d 1303 (1985), to illustrate that Brown‘s sentence is, if anything, lenient.
This assignment does not present reversible error.
Conclusion
By his eighth assignment Brown requests correction of any errors patent. We find nothing we consider to be error patent.
For the reasons expressed, Demetrious Brown‘s conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.