State v. WilliamsState v. Williams
The defendant, Bobby R. Williams, was charged by bill of information with two counts of armed robbery with the use of a firearm, in violation of
The defendant now appeals, urging as a single assignment of error that the trial court erred in not admonishing the jury as to the unduly suggestive identification procedure utilized in connection with the testimony of one of the victims of armed robbery.
FACTS
At approximately 5:10 p.m. on October 25, 1999, the manager of a Burger King restaurant located on Jefferson Highway at its intersection with Lobdell Avenue in Baton Rouge was working in the office with an assistant manager, when the defendant and another man entered. The defendant was wearing a bandana on his head, a hooded sweatshirt, and sunglasses, and he was holding a pistol. He demanded that the manager hand over the money, which the manager had been preparing for a bank deposit. While the manager was attempting to comply with the defendant‘s demands, the defendant struck him with his pistol, knocking him to the ground. The manager gave the defendant the bank deposit, and the assistant manager gave him the contents of the cash drawers. The defendant took approximately $2,700 total.
An employee of the restaurant, Stacey James, had been working at the drive-through window of the restaurant when she observed a man jump over the counter, pistol in hand, and demand to see the manager. He grabbed James, put the gun to her side, and knocked her down while trying to get to the manager. James saw a second robber, who was shorter and thinner than the first, enter the restaurant, carrying a pistol. At the trial, James identified the defendant as the one who jumped over the counter, demanding to see the manager.
After the robbery, the manager identified the defendant in a photographic lineup, as the robber who hit him with a pistol. He again identified the defendant at the trial. He explained that he had no problem identifying the defendant, because his face was sufficiently exposed, despite the sunglasses and head coverings.
Another employee of the restaurant, Chalete Vaughn, identified the defendant in a photographic lineup, and again at trial, as one of the two men she saw running out of the Burger King, just as she arrived in the parking lot.
The owner of a nearby restaurant observed the two men running from the Burger King and was able to provide the police with a description of their vehicle and the license plate number. A detective of the Baton Rouge City Police, who was in the area, observed a car that met the description of the vehicle in the robbery broadcast. As the detective chased the car, the defendant pointed his pistol at the detective, who later identified the defendant after his arrest and again at trial.
IN-COURT IDENTIFICATION TESTIMONY
In his sole assignment of error, the defendant contends that the trial court erred in not admonishing the jury to disregard the identification testimony of Stacey James. James was never asked to identify her assailant prior to trial as the other witnesses had done, identifying him for the first time at trial. The defendant asserts that the identification by James, one year after the crimes occurred, when he had been wearing sunglasses, a bandana, and hood, was unreliable and for no other purpose than to unduly influence the jury. He further complains that the identification procedure at trial was unduly suggestive, as the witness knew that she had come to trial to identify the man who had been previously identified by her manager. The defendant asserts that the witness knew that the defendant was the only black man at the defense counsel‘s table.
Since James made no identification of the defendant prior to trial, there was no motion to suppress her identification in this case. After James identified the defendant at trial, counsel for the defendant moved for a mistrial based upon his assertion that the identification procedure was unduly suggestive. The trial court then allowed the defense counsel to fully cross-examine the witness. Afterward, the trial court allowed the defense counsel to question the witness during a recess, away from the jury, in order to determine whether the identification was unreliable. The trial court determined that, considering the totality of the circumstances, the identification procedure was not unduly suggestive, and denied the motion for mistrial. Counsel for the defendant then moved that the court admonish the jury to disregard James’ identification of the defendant, which motion was denied by the trial court.
A pretrial identification is not a prerequisite to an in-court identification. State v. Long, 408 So.2d 1221, 1225 (La. 1982). An accused has no constitutional or statutory right to a pretrial or in-court lineup. State v. Buie, 477 So.2d 157, 162 (La.App. 1st Cir.1985). The Louisiana Supreme Court, in finding that an in-court identification of a defendant, similar to the one in this case, was not unduly suggestive, stated that the mere fact that the defendant was obviously seated at the defendant‘s table at trial, conspicuously displayed in the accusatorial spotlight, at the time the witness identified him as the perpetrator of a crime, does not suggest to the witness that the defendant committed the crime, only that he is charged with its commission. State v. Johnson, 343 So.2d 155, 160 (La.1977). The decision by a trial court as to whether to allow an in-court lineup as a protective measure is entrusted to the trial court‘s discretion. See State v. Johnson, 343 So.2d at 161. The trial court, likewise, has broad discretion to decide whether to order protective measures other than a pretrial lineup, such as by seating the defendant elsewhere than in the normal place of an accused in the courtroom. See State v. Johnson, 343 So.2d at 161. Ample opportunity to cross-examine the witness concerning the identification is sufficient to remedy any suggestion inherent in the in-court identification procedure. See State v. Buie, 477 So.2d at 162.
In the instant matter, counsel for the defendant was given the opportunity to fully cross-examine James regarding her
Additionally, the trial court provided detailed jury instructions that further cured any possible prejudice resulting from the identification. The trial court charged the jury as follows:
In appraising the identification testimony of a witness, you should consider whether the witness has the capacity and an adequate opportunity to observe the offender. Whether the witness had an adequate opportunity to observe the offender at the time of the offense may be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had occasion to see or know the person in the past.
You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification.
Finally, you must consider the credibility of the identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he has the capacity and opportunity to make a reliable observation on the matter covered in his testimony.
We find that the trial court did not abuse its discretion in allowing the in-court identification of the defendant by James. Any suggestiveness inherent in the procedure was sufficiently remedied by the extensive cross-examination of the witness and by the instructions given to the jury. It was for the jury to decide the weight to be given to this witness‘s testimony.
Accordingly, this assignment of error is without merit.
PATENT ERROR
This court routinely reviews the record for errors patent whether or not a defendant makes such a request. Under
When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Section shall be served consecutively to the sentence imposed under the provisions of
R.S. 14:64 .
The minutes and the criminal commitment in the record state that the sentences under this statute for counts one and three were to be served at hard labor. The transcript of the sentencing proceeding reflects that the trial judge imposed the sentence under
This situation is analogous to
In this matter, since
Accordingly, we amend the sentence by deleting that provision of the sentence for count three which requires the additional penalty of imprisonment for five years, under
CONVICTIONS ON COUNTS ONE, TWO, AND THREE AFFIRMED; SENTENCES FOR COUNTS ONE AND TWO AFFIRMED. SENTENCE FOR COUNT THREE AMENDED, AND AS AMENDED, AFFIRMED. REMANDED WITH INSTRUCTIONS.