On Appeal from The 18th Judicial District Court, Parish of Pointe Coupee, State of Louisiana. Trial Court No. 77666-F. The Honorable James J. Best, Judge Presiding.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.
Richard Ward, Jr., District Attorney, Chad Aguillard, Elizabeth A. Engolio, Assistant District Attorneys, New Roads, Louisiana, for Plaintiff/Appellee, State of Louisiana.
Jessica Sparks, Baton Rouge, Louisiana; Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant, George Adonis Carter.
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
[2014 0742 La.App. 1 Cir. 2]
The defendant, George Adonis Carter, was charged by bill of information with armed robbery by use of a firearm, a violation of Louisiana Revised Statutes 14:64 and 14:64.3, and with being a convicted felon in possession of a firearm or carrying a concealed weapon, a violation of Louisiana Revised Statute 14:95.1. After pleading not guilty, the defendant filed a motion to suppress the pretrial identification and any subsequent in-court identification, which was denied. After a trial by jury, the defendant was found guilty as charged on both counts. Motions for new trial, post verdict judgment of acquittal, and in arrest of judgment were denied. The defendant was sentenced to imprisonment at hard labor for ninety-nine years for the armed robbery conviction, plus an additional five years pursuant to Louisiana Revised Statute 14:64.3, and twenty years at hard labor for the felon in possession of a firearm conviction. All of the sentences were ordered to be served consecutively. The defendant now appeals, assigning error to the trial court's denial of the motion to suppress, the sufficiency of the evidence, the constitutionality of the sentences, the denial of the motion in arrest of judgment, and the State's use of a prior juvenile conviction as a predicate offense. We affirm the convictions, vacate the sentences, and remand for resentencing.
A robbery was committed by three perpetrators on July 19, 2011, at Pablo's Truck Stop, a New Roads convenience store and casino. At about 2:30 a.m., three individuals entered the casino through an entrance that was being monitored and
controlled by a security guard, Robert Carter. One of the perpetrators entered the building wearing a bandana over his face, which Carter immediately demanded that he remove. When his instructions were ignored, Carter reached for his gun, [2014 0742 La.App. 1 Cir. 3] but one of the perpetrators drew a gun, pointed it at Carter's head, and ordered him to put his hands on his head. Carter was then forced at gun point onto his knees with his hands behind his back. Two of the perpetrators took Carter's gun and keys, then bound his hands with duct tape. The perpetrator wearing the bandana used the keys to open cash drawers located behind a counter, from which the perpetrators removed approximately eight thousand dollars in cash.
COUNSELED AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In counseled and pro se assignment of error number one, the defendant argues that the trial court erred in denying his motion to suppress the identification of the defendant by Carter. Carter positively identified the defendant and the codefendant, Travis Isaac, as being the two perpetrators without masks. The defendant contends that the photographic lineup unduly focused the attention of Carter on the defendant and increased the likelihood of misidentification, because the same photographs used for the photographic lineup for Isaac were used again for the photographic lineup for the defendant, except that the defendant's photograph was substituted for Isaac's. In support of his argument that the identification was not reliable, the defendant points out that Carter admitted to being mistaken about the height, weight, and possible age of the perpetrators.
To suppress an identification, the defendant must prove the identification procedure was suggestive and that the totality of circumstances presented a likelihood of misidentification. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 477, cert. denied, El-Mumit v. Louisiana, __ U.S. __, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). An identification procedure is suggestive if it unduly focuses a witness's attention on the suspect. Sparks, 68 So.3d at 477; State v. Neslo, 433 [2014 0742 La.App. 1 Cir. 4] So.2d 73, 78 (La. 1983). However, the suggestive nature of an identification does not per se preclude admissibility unless the identification is untrustworthy under the totality of the circumstances. The central question in determining the admissibility of an identification is whether the actual identification was reliable. Sparks, 68 So.3d at 477.
In determining whether the reliability of an identification outweighs the suggestiveness of the identification procedure, the court is directed to look to several factors: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the perpetrator; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Sparks, 68 So.3d at 477.
A trial court's determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Kimble, 10-1559 (La.App. 1 Cir. 3/25/11), 62 So.3d 782, 789. When a trial court denies a motion to
suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, that is, unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751.
Detective Shael Stringer of the New Roads Police Department assisted in the investigation and testified at the suppression hearing and at trial. He assisted in the robbery investigation. After arriving at the crime scene, he observed video [2014 0742 La.App. 1 Cir. 5] surveillance and interviewed witnesses, including Carter, who provided a description of the three ...