State v. HawkinsState v. Hawkins
Earl Fitzgerald Hawkins was charged by bill of information with armed robbery, in violation of
1. Prior to trial of the above matter, the defendant filed a motion to suppress the photo lineup, which motion was denied. Defendant designates this ruling of the court as assignment of error number one.
2. During the trial, defense counsel asked that a juror be dismissed for cause, which motion was denied. Defendant designates this ruling of the trial court as assignment of error number two.
3. During the trial, an objection was made by the defendant in reference to the introduction of the photographs of the lineup, which objection was overruled, and the photographs were allowed to be introduced into evidence. Defendant now designates this ruling of the trial court as assignment of error number three.
4. During the trial, the defense moved for a mistrial predicated upon
5. During the trial, an objection was made by the State in reference to a question asked to Det. Don Baucum undеr cross-examination, which objection was sustained by the trial court. Defendant now designates this ruling of the trial court as assignment of error number five.
7. Defendant shows that the verdict is contrary to the law and evidence and designates the verdict of the jury as assignment of error number sеven.
8. Defendant shows that the sentence of the trial court was excessive and designates this as assignment of error number eight.
Assignment of error number five was not addressed in defendant‘s brief to this Court and, therefore, is considered abandoned.
FACTS
On the night of May 3, 1983, at about 12:30 a.m., an armed robbery occurred at the Delta Fuel Stop in Port Allen, Louisiana. There were two cashiers on duty that night, and there were also a number of customers present in the store. The evidence adduced at trial indicated that there were two рerpetrators. One had a pillow case over his head, and the other one was carrying a handgun. The perpetrator with the gun entered the store and said, “Freeze, this is a holdup.” He pointed the gun at one of the cashiers, went behind the counter and told her to open the register. After taking the cash therefrom, both perpetrators fled.
Several customers who were present on the evening in question witnessed the robbery and observed the perpetrators. One customer went outside after the crime occurred and saw the perpetrators run behind an adjacent building. When he was leaving the gas station in his vehicle, the witness saw a green Chevrolet Camaro coming from behind the adjacent building at a high rate of speed. The witness was able to see into the Camaro and observe the man who had just committed the robbery, along with his cohort. The witness was also able to see the license tag number on the Camaro, and he exited the highway and called the authorities.
During the robbery, another customer was ablе to closely observe the perpetrator with the handgun. Approximately two weeks after the offense, he met with law enforcement officials and identified defendant herein from a photographic lineup.
Det. Don Baucum of the West Baton Rouge Parish Sheriff‘s Office investigated the crime herein. He determined that the license tag number given by one of the witnesses was registered to a Jacqueline D. Smith of 979 Avenue C in Port Allen, Louisiana. The detective also determined that defendant‘s address was 979 Avenue C in Port Allen, Louisiana. Det. Baucum also constructed several photographic lineups and met with several witnesses. Thereafter, defendant was identified as one of the perpetrators herein.
CHALLENGE OF JUROR FOR CAUSE
Through his second assignment of error, defendant contends that the trial court erred in denying his challenge for cause of a prospective juror who was married to a law enforcement officer. Defendant argues that the prospective juror was also friendly with many law enforcement officials and, therefore, it would be reasonable to conclude that she would not be impartial.
The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. See
Based upon our review of the record herein, we cannot conclude that the trial court‘s denial of defendant‘s challenge for cause of this juror was an abuse of its discretion. Accordingly, this assignment of error is without merit.
MOTION TO SUPPRESS PHOTOGRAPHIC LINEUP
Through his first assignment of error, dеfendant argues that the trial court erred in denying his motion to suppress the pretrial photographic lineup.1 Defendant alleges that the lineup was suggestive.
Defendant has the burden of proof on a motion to suppress an out-of-court identification.
In determining whether a photographic identification was reliable, the factors to be considered are: (1) the opportunity of the witness to view the criminal at the moment of the crime; (2) the degree of attention of the witness; (3) the accuracy of the prior description of the criminal; (4) the level of certainty of the identification; and (5) the elapsed time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Sylvas, 558 So.2d at 1199. A trial court‘s determination
Both victims and two eyewitnesses who were present during the robbery participated in various identification procedures. Neither victim had an opportunity to gather a careful оbservation of the perpetrators. One perpetrator‘s face was covered. The victim who was confronted by the armed, unmasked perpetrator testified that all she could see “was his eyes and the top of his head ... over the top of a gun ...” However, two witnesses, Terry Dodd and Steve Chellette, had ample opportunity to view one of the assailants. Chellette stated that he was at the register checking out when he heard “someone say something.” He looked up, and the hooded assailant “had the lady at the cash register.” The assailant then pushed the victim back and said, “Open up the register.” He then pushed her aside and took the money from the register. Chellette indicated that he saw defendant herein with a .22 caliber snub-nose revolver in his hand. After the perpetrators completed the robbery and ran out of the store, Chellette verified that the victims were not physically harmed and noted that they were in the process of contacting the authorities; thereafter, he left. Chellette was traveling as a passenger in a van when he noticed the suspects’ vehicle speeding away from the scene. As the suspects’ vehicle passed, he was able to make a mental note of the license plate number and he reported that number to the authorities. Another witness, Terry Dodd, stated substantially the same details as Chellette; however, he never saw the suspects’ vehicle.
Det. Don Baucum of the West Baton Rouge Sheriff‘s Office testified that he showed a mug shot book to Chellette. There wеre over one hundred photographs in this book. Although Chellette did not identify defendant‘s picture in this book, Baucum stated that defendant‘s photo was not located therein. Baucum also showed the mug shot book to Terry Dodd who also failed to point out a photograph which he thought resembled the perpetrator. Baucum further testified that he constructed a photographic lineup by using driver‘s license pictures from the Louisiana State Driver‘s License Bureau. He placed six driver‘s license photogrаphs of black males inside a manila folder. When he showed this lineup separately to both Chellette and Dodd, each chose defendant‘s picture without hesitation. Additionally, although one of the victims admitted she could not distinguish defendant‘s picture from the other five photographs in the lineup, she did participate in a live lineup prior to trial and testified that the look in defendant‘s eyes “gave her a hunch” that he was the perpetrator.
Given the facts that both witnesses had ample opportunity to viеw defendant during the commission of the crime and that they were standing directly next to the defendant while he committed the crime, their lack of hesitation in choosing defendant out of the photographic lineup, and the fact that their identifications of defendant were made a few weeks after the crime occurred, we do not find that the trial court erred in allowing the witnesses to make an in-court identification of defendant at trial. Further, we do not find that the trial court erred in denying defendant‘s motion to supprеss the results of the pretrial identification procedures. This assignment of error is without merit.
ADMISSIBILITY OF PHOTOGRAPHS
Through his third and fourth assignments of error, defendant alleges as error the introduction into evidence of the photographs from the lineup; and he also urges that the trial court erred in denying his motion for a mistrial based upon a legal defect in the proceedings due to a lack of a proper foundation for admitting the photographs into evidence. First, where a key issue is defendant‘s identity as the perpetrator, the State is allowed to negate any reasonable probability of misidentification. State v. Buie, 477 So.2d 157, 162 (La.App. 1st Cir.1985). Indeed, where an allegedly
The granting of a mistrial is within the discretion of the trial court; and denial of a mistrial will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 471 So.2d 255, 259 (La.App. 1st Cir.), writ denied, 475 So.2d 1102 (La.1985). A motion for mistrial under
During Detective Baucum‘s testimony regarding the construction of the photographic lineup, defense counsel objected on the grounds that a proper foundation for admitting the photographs had not been laid. The trial court overruled defendant‘s objection; and defense counsel then moved for a mistrial pursuant to
The trial court found that
Defendant further contends that it was necessary for the person or agency responsible for the production of the driver‘s license photograph to testify at trial. This argument is without merit. See State v. Bibbens, 525 So.2d at 257-258. The admission of evidence and the granting or denial of a motion for mistrial are within the trial court‘s sound discretion and will not be overturned on appeal absent an abuse of that discretion. We find no abuse of discretion; and, therefore, we find the above assignments of error to be without merit.
LIMITATION OF CROSS-EXAMINATION
Through his sixth assignment of error, defendant avers that the trial court erred in refusing his request to recross-examine one of the State‘s witnesses.
The defendant‘s right to confront and cross-examine witnesses, found in the
While on cross-examination, Det. Baucum testified as follows:
Q Now, Officer Baucum, did you take any fingerprints at the scene?
A There were no fingerprints available.
Q My question was, sir, did you take any fingerprints?
A No, I did not.
Q Okay. Now, what was the cash register made of, what kind of material was it made of?
A It‘s a plastic, metallic.
Q Now, did you run any fingerprints on a gun or knife or any other kind of weapon?
A Never found a gun and never found a knife.
Q Sir, please answer my question. Did you take any fingerprints off of those items?
A Obviously I did not; there was none ever recovered.
Q So your answer is no.
A That‘s correct.
* * * * * *
While on redirect examination, Det. Baucum testified as follows:
Q Why didn‘t you take any fingerprints at the scene, Detective Baucum?
A I was told by the victim—
DEFENSE COUNSEL: Objection.
Q Did you have аny reasons for not taking fingerprints at the scene?
A Yes, sir, I did.
Q Okay.
PROSECUTOR: You‘re excused.
DEFENSE COUNSEL: You have to tender him first.
THE COURT: Step down.
PROSECUTOR: Excuse me.
DEFENSE COUNSEL: You didn‘t tender him to me.
THE COURT: Well, he is on redirect and that‘s the end of the story. Step down, Detective Baucum.
PROSECUTOR: You‘ve had him. He‘s been under cross-examination.
DEFENSE COUNSEL: Yes, but I didn‘t get a chance to redirect him. He had him on redirect. He asked him those last questions and I‘m supposed to have an opportunity—
THE COURT: You can leave, Detective Baucum. Direct examination, cross-examination, and redirect. That‘s it.
DEFENSE COUNSEL: Your Honor, after he redirects I have no opportunity to cross him on the redirect?
THE COURT: Not when he doesn‘t go into anything that wasn‘t asked, you know. He asked only from what you went into. That‘s it. That‘s the rules of evidence and I control it. And that‘s it.
DEFENSE COUNSEL: We assign error, Your Honor.
THE COURT: Make your objection first.
DEFENSE COUNSEL: We object to the court‘s ruling and assign error.
THE COURT: I wish you would put your reasons down.
DEFENSE COUNSEL: Your Honor, we think that in a normal order of procedure for a trial that after the State has questioned he‘s tendered to the Defense for questioning.
THE COURT: Did he not give you cross-examination?
DEFENSE COUNSEL: I did cross him.
THE COURT: Proceed.
PROSECUTOR: The State rests, Your Honor.
Herein, there were no new issues raised on redirect examination; therefore, recross-examination was not proper. See
SUFFICIENCY OF THE EVIDENCE
Through his seventh assignment of error, defendant avers that the verdict was contrary to the law and the evidence. We take this to be a challenge to the sufficiency of the evidence.3 Although defendant should have proceeded by way of a motion for post-verdict judgment of acquittal, we will consider the claim since it was briefed pursuant to a formally assigned error. State v. Jones, 496 So.2d 638, 640 (La.App. 1st Cir.1986).
The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Prior to its amendment by Act 70 of 1983 (which became effective August 30, 1983),
The trier of fact heard the testimony of the two victims concerning the details of the crime. Further, two witnesses positively identified defendant as the perpetrator of that crime. Although defendant called several alibi witnesses, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir.1984). The determination of the credibility of witnesses is a matter of the weight of the evidence. This determination, being a question of fact, is not subject to appellate review. State v. Payne, 540 So.2d at 524.
Viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have concluded beyond a reasonable doubt that the State proved all the elements of armed robbery (as that crime was defined before August 30, 1983) and that the defendant was guilty of that offense. This assignment of error lacks merit.
EXCESSIVE SENTENCE
Under his eighth assignment of error, defendant contends that, although he had a pending criminal charge of armed robbery in another parish, this conviction was his first; and, therefore, the twenty year sentence imposed herein was excessive in light of
A trial court‘s reasons in imposing sentence, as required by
Having been convicted of armed robbery, defendant‘s sentencing exposure was imprisonment at hard labor for not less than five years nor more than ninety-nine years, without benefit of parole, probation or suspension of sentence. See
We find the sentence imposed herein was not apparently severe in relation to defendant or the offense committed. We do not find defendant‘s sentence to be excessive.
For the foregoing reasons, defendant‘s conviction and sentence are affirmed.
AFFIRMED.