[Copyrighted Material Omitted]
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-4590, DIVISION " N" . HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, JULIET L. CLARK, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
JANE L. BEEBE, ATTORNEY AT LAW, Louisiana Appellate Project, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Robert M. Murphy.
ROBERT M. MURPHY, Judge.
[14-551 La.App. 5 Cir. 2] STATEMENT OF THE CASE
On December 13, 2012, the Jefferson Parish Grand Jury returned an indictment charging defendant, Tory Wilson, with second degree murder in violation of La. R.S. 14:30.1. On December 20, 2012, a second count was added charging defendant with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. Defendant was arraigned on January 14, 2013, and entered a plea of not guilty to the charges.
A motion hearing was held on June 27, 2013. The court denied defendant's motion to suppress statement and motion to suppress identifications except for one witness, Jeffrey Benson.
On February 10, 2014, the trial commenced, and on February 13, 2014, a twelve-person jury returned a unanimous verdict of guilty as charged on both counts. On February 19, 2014, defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal. On February 20, 2014, these defense motions were denied. Thereafter, as to count one, second degree murder, defendant was sentenced to life in prison at hard labor and, as to count two, [14-551 La.App. 5 Cir.
3] possession of a firearm by a convicted felon, defendant was sentenced to twenty years at hard labor. Both sentences were to be served consecutively and without benefit of parole, probation, or suspension of sentence.
On February 25, 2014, defendant filed a motion to reconsider sentence, requesting the court to declare his life sentence excessive
and to impose a term in years. That same day, defendant filed a motion for appeal, which was granted on February 26, 2014. On March 27, 2014, defendant's motion to reconsider sentence was denied.
On the evening of August 24, 2012, Stephanie South was chased throughout her home by a male with a gun who shot at and kicked in the front door of her Westbank apartment. She was shot 16 times both inside and outside of her apartment, and she died outside of her address at 539 Nel Court from the gunshot wounds, which included seven shots to her head. Three eyewitnesses identified defendant as the man they saw either fire the weapon inside and outside the apartment or flee the scene. The identifications made by the three witnesses, Jacquel Huggins, Stacey Benson, and Taryn Norman, are the subject of the motion to suppress that was denied by the trial court. They were presented with photographic line-ups and identified defendant as the shooter. These witnesses further identified defendant at trial. The victim's blood on defendant's clothing was also verified through DNA analysis. On the evening in question, Ms. South's family members, neighbors, and friends gathered at her house to help her and her two children, ages 2 and 3, move back to St. Joseph. Ms. Huggins, a longtime friend of the victim, came to New Orleans from St. Joseph on the date in question to help the victim move. She was inside Ms. [14-551 La.App. 5 Cir.
4] South's apartment when the events occurred. She testified that she and the children hid when the " banging" began on the front door. From her hiding place in the closet, she heard the initial shots and the front door being forced open. She testified that she was able to focus her sight on the armed defendant in the lighted bedroom through the hinged opening in the closet door. She saw defendant's face twice as he passed the door. On being presented with a photographic line-up at the police station, she was able to limit her selection to two possible suspects. At trial, she was one hundred percent sure, however, that defendant was the assailant. Ms. Benson, a neighbor living directly behind Ms. South, testified that she saw someone run away after hearing approximately 20 gunshots. She testified that she saw defendant's face outside before he slouched over and ran away. She recognized defendant as someone she had seen on multiple occasions going to and from the victim's apartment. At trial, she testified she was one hundred percent certain of her identification of defendant from the photo array.
Ms. Taryn Norman, a neighbor from across the street, testified that she first heard gunshots and, after relocating to her mother's bedroom window, she saw an African-American man shoot the door and enter Ms. South's apartment. She saw the victim exit and then fight the defendant, concluding with him standing over her and shooting her additional times. Ms. Norman testified that she recognized defendant as someone she had seen before and someone she perceived to be the boyfriend of her neighbor. She identified him from the photographic line-up presented by Detective Rhonda Goff. Defendant made a statement confirming that he was at Ms. South's apartment on the evening in question. Detective Goff testified that defendant related to her that he went to the apartment to sell some pills. She further testified that defendant ended his statement when she asked him about the weapon.
[14-551 La.App. 5 Cir. 5] Jefferson Parish Sheriff's Office DNA analyst David Cox, stipulated to be an
expert in DNA analysis, verified that the victim's blood was found on defendant's t-shirt.
Defendant complains that the identifications were suggestive based on what was visible on Detective Matt Vasquez's computer screen in the presence of the witnesses. Detective Vasquez testified that he was made aware that a witness had potentially seen a photograph of defendant on his computer screen. A supplemental report indicated that a witness did see something after all the identifications had been made. Detective Vasquez testified that the photos on the screen did not contain the same photos used in the line-ups. He further testified that the screen contained photos of individuals named " Tory Wilson" in the New Orleans area, but that it did not contain defendant's photo. Ms. Benson testified that she did see a screen of four photos, but no one presented on the screen was the person she saw that night.
LAW AND DISCUSSION
In his first assignment of error, defendant argues that the trial court failed to suppress the identifications. He argues that the identifications were tainted in light of the alleged appearance of defendant's photo on Detective Vasquez's computer.
A defendant who seeks to suppress an identification must prove that both the identification itself was suggestive and that there was a likelihood of misidentification because of the identification procedure. See, e.g., State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. Prudholm, 446 So.2d 729 (La. 1984); State v. Pizzo, 575 So.2d 844 (La.App. 5 Cir. 1991). An identification procedure is considered suggestive if the attention of a witness during a line-up display is unduly focused on that particular defendant. 9 State v. Bradley, 11-1060 (La.App. 5 Cir. 9/25/12), [14-551 La.App. 5 Cir.
6] 9 So.3d 1099, writ denied, 12-2441 (La. 5/03/13), 113 So.3d 208; Pizzo, supra .
Even if the identification could be considered suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La. 9/8/99), 750 So.2d 916, c ert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d ...