STATE of Louisiana v. Walter A. SMITH.
No. KA 5452.
Court of Appeal of Louisiana, Fourth Circuit.
November 14, 1986.
Writ Denied March 13, 1987.
499 So. 2d 340
Before SCHOTT, KLEES and BYRNES, JJ.
Raleigh L. Ohlmeyer, Jr., New Orleans, for defendant-aрpellant.
SCHOTT, Judge.
Defendant was convicted of attempted armed robbery in violation of
On June 5, 1985, around noon, the victim was approaching his parked automobile when two men approached him and asked for fifteen cents. As the victim reached into his pocket to get the changе one man pulled a gun and pointed it at the victim‘s head. The victim grabbed the gun, a scuffle ensued, and the victim was shot in the leg. The robber dropped thе gun and fled. On July 5, 1985 the victim identified the defendant as the robber from a photographic lineup.
In our search of the record for errors patent we noted that the trial court did not delay sentencing for twenty-four hours after defendant‘s motion for new trial was denied as required by
In the first of his two assignments of error defendant сontends the trial court erroneously denied his motion to suppress his identification by the victim from the photographic lineup presented to him by the police. Defendant contends the identification was suggestive because his photograph stood out among the six as his and only one other lacked facial hair.
Defendant‘s burden is to prove that the identification was suggestive and that there was a likelihood of misidentification
Considering these factors, misidentification of defendant by the victim was not at all likely. The victim observed defendant in broad daylight at close range fоr two or three minutes and his attention was sharply focused on defendant. He immediately described the defendant to the police as 18 or 19 yeаrs of age, 5‘1 to 5‘3” in height; 120 to 140 pounds in weight; clean cut, and medium to dark skin. Defendant was actually 19 years of age, 5‘4“, 120 lbs., and otherwise as described. Thus, the victim‘s dеscription of defendant was extremely accurate. Both the policeman who conducted the lineup and the victim testified that the defеndant‘s photograph which was the third of six in the stack was immediately picked without the slightest degree of hesitation or uncertainty. Finally, only a month elаpsed between crime and identification.
We have examined the photographic lineup and find no support for defendant‘s contentiоn that it is suggestive. Defendant‘s photograph does not display him so singularly that a witness‘s attention would be unduly focused on him. State v. Smith, 430 So. 2d 31 (La.1983). While defendant‘s photograph mаy not be a strict match for the others’ they resembled defendant‘s sufficiently to afford a reasonable test of identification. Id.
We have conсluded that defendant failed to carry his burden of proof in his attack on his identification so that this assignment is meritless.
By his other assignment defendant contends his sеntence was excessive. At the sentencing hearing the trial judge stated:
The defendant stands convicted by jury of the crime of attempted armed robbery with a gun. The Court has considered appropriateness of sentence under the provisions of Code of Criminal Procedure, Article 894.1 and finds аs follows: The defendant is nineteen (19) years old, single, and with no listed occupation. He has been arrested ten times in four years for simple burglary, criminal trespass, receiving stolen things, disturbing the peace, possession of marijuana, possession of cocaine, armed robbery and attemрted murder. In the last two instances, which form the basis for the present charge and conviction, the defendant and another man accosted the victim outside of a grocery store and asked for change of a dollar. When the victim informed them that he only had fifteen cents in change, the defendant asked for the money, then pulled the gun and pointed it at the victim‘s head and started to go into his pocket. The victim then grabbed the gun, but the defendant broke his grip, then shot him. The victim was nevertheless able to knock the defendant down and disarm him. The victim spent three days in the hospital with a severed artery. His injury required twenty-four stitches and left him with a limp. He still re-lives this terrible experience. This Court has always taken an extremely serious view of the crime of armed robbery in any circumstance, but when it involves an attempted murder and shooting of the victim it acquires a character which negatives аny possible extenuation. In the instant case the only difference in the attempted armed robbery and a murder charge lies in the disturbance by the viсtim of the defendant‘s aim in his efforts to keep from being shot in the head. For the foregoing reasons the Court feels that any lesser sentence than thаt which is about to be imposed would deprecate the seriousness of the crime. It is therefore the sentence of this Court that the defendant Wаlter Smith serve forty (40) years at hard labor, in the
custody of the Department of Corrections, without benefit of parole, probation, or suspensiоn of sentence. Remand him.
In State v. Isaac, 487 So. 2d 565 (La.App. 4th Cir.1986) this court summarized the principles to be considered in reviewing a sentence and provided the pertinent authoritiеs for such principles. We are not at all persuaded that this forty year sentence, which is near the maximum authorized, is “grossly out of proportiоn” to the severity of the crime committed by the defendant or is a case of the imposition of “purposeless and needless” pain and suffering. On thе contrary, as the trial court explained the circumstances clearly warranted the sentence imposed upon defendant. The trial judgе was obliged to apply the guidelines set out in
The sentence imposed in this case was consistent with those affirmed by this court in State v. Augustine, 482 So. 2d 150 (La.App. 4th Cir.1986), 49½ years for attempted armed robbery; State v. Johnson, 466 So. 2d 741 (La.App. 4th Cir.1985), writ denied, 469 So. 2d 979 (La.1985), 40 years for attempted armed robbery; and State v. Williams, 454 So. 2d 295 (La.App. 4th Cir. 1984), 99 years for a second offender for attempted armed robbery. We conclude that the trial court did not abuse his sentencing discretion in this case.
Accordingly, the conviction and sentence are affirmed.
AFFIRMED.