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State v. Brown

Court of Appeals of Louisiana, Second Circuit

May 2, 2017


         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 317752 Honorable Brady D. O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville Counsel for Appellant.


          JAMES EDWARD STEWART, SR. District Attorney Counsel for Appellee.

          TOMMY JAN JOHNSON MEKISHA SMITH CREAL Assistant District Attorneys.

          Before PITMAN, STONE, and COX, JJ.

          COX, J.

         Following a jury trial, Frederick Lujuan Brown was convicted as charged of one count of second degree robbery in violation of La. R.S. 14:64.4. Brown was sentenced to 18 years' imprisonment at hard labor. A timely motion to reconsider sentence was denied. Brown appeals his conviction and sentence. We affirm both the conviction and sentence.


         In the late afternoon of January 17, 2013, Warren Perkins was at his body shop when a black male entered the establishment and told Perkins that a friend was going to bring his wrecked truck to the shop. Perkins' employees, Bacilio Mendez and Bryant Johnson, who had not left for the day, saw the man, and one of the employees attempted to talk to him. The man followed Perkins into his office where Perkins inquired as to when the man's friend would be bringing the truck to the shop. The man then requested to use Perkins' phone. After the man appeared to make a phone call, and Mendez and Johnson had left the shop, the man lunged across Perkins' desk and began to beat him repeatedly in the head. Perkins was knocked unconscious and suffered a broken jaw, broken cheekbone and eye socket, and a concussion.[1] While disoriented and bleeding, Perkins made his way out of the shop. One of the employees who had returned to the shop found Perkins and called the police. Perkins' wallet and more than $9, 000.00 cash had been removed from his pocket.

         Police developed Frederick Lujuan Brown as a suspect after speaking with Perkins, Mendez, and Johnson, who had all previously seen Brown in the shop and described Brown, his clothing, and the car he drove. The witnesses also stated that Brown had a "funny made mouth." After talking to business owners located near the scene of the crime, police received a phone call from the owner of a nearby hotel who indicated that he had the driver's license of Frederick Lujuan Brown who fit the suspect's description. Brown had not paid his bill and the hotel owner held his license. Mendez, Johnson, and Perkins were able to identify Brown as the assailant from a photographic lineup shown to them shortly after the crime.

         Following a jury trial, Brown was convicted as charged on August 19, 2015. The state filed a second-felony habitual offender bill of information against Brown on September 29, 2015. On November 23, 2015, Brown filed a pro se motion for post-verdict judgment of acquittal which the trial court denied.[2] On April 26, 2016, Brown was sentenced to 18 years at hard labor with credit for time served, to run consecutively with any other sentence.[3]

         On May 17, 2016, Brown filed a timely pro se motion for reconsideration of sentence arguing ineffective assistance of counsel and that the trial court failed to articulate reasons for the length of the sentence imposed. Brown also urged that the trial court was not aware that he was employed at the time of the incident and that his family was dependent on his income and would undergo excessive hardship during his incarceration. Brown pointed out his voluntary participation in a pretrial drug testing program for two years and his role as a facilitator, which he argued showed that he was particularly likely to respond to probationary treatment which "may result in incidents of this nature ever to recur again." The trial court denied Brown's motion to reconsider sentence, [4] and this appeal ensued.[5]


         Sufficiency of the Evidence

         In his first assignment of error, Brown argues that Perkins' inconsistent testimony regarding how many times and the reason Brown allegedly came into his body shop, the conflicting descriptions of the attacker made by the witnesses, and the fact that those descriptions also described another individual who was known to drive a vehicle similar to that used by the attacker and to frequent the area where the crime occurred, is sufficient evidence to establish only that one of two men could have been the attacker. Thus, Brown argues that this evidence established one reasonable hypothesis of his innocence based upon a reasonable probability of misidentification that precluded the jury from convicting him of second degree robbery. [6]

         Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297.

         It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Washington, 50, 424 (La.App. 2 Cir. 3/16/16), 188 So.3d 350. The trier of fact hears the testimony first hand and unless the factfinder's assessment of believability is without any rational basis, it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La. 1988); State v. Price, 48, 986 (La.App. 2 Cir. 5/15/14), 140 So.3d 1212, writ denied, 14-1274 (La. 2/6/15), 158 So.3d 814. A factual determination concerning conflicting testimony will not be disturbed on review unless it is clearly contrary to the evidence. Mussall, supra; State v. Williams, 32, 631 (La.App. 2 Cir. 12/8/99), 747 So.2d 1256, writ denied, 00-0734 (La. 11/27/00), 775 So.2d 441, and writs denied, 00-0358, 00-0360 (La. 1/5/01), 778 So.2d 588. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42, 025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529; State v. Gilliam, 36, 118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So.2d 422.

         The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Eason, 43, 788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913.

         In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Brady, 414 So.2d 364 (La. 1982); State v. Brock, 37, 487 (La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied, 04-1036 (La. 4/1/05), 897 So.2d 590; Williams, supra.

         Face-to-face transactions taking place during daylight hours and the length of time that transpires during the altercation are factors that reduce the likelihood of misidentification. State v. Ruano, 12-1517 (La.App. 4 Cir. 7/31/13), 120 So.3d 908, writ denied, 13-2068 (La. 3/14/14), 134 So.3d 1193; State v. Payne, 04-828 (La.App. 5 Cir. 12/14/04), 892 So.2d 51.

         Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Davis, 27, 961 (La.App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La. 10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2 Cir. 1990), writ denied, 566 So.2d 983 (La. 1990).

         Even assuming an out-of-court identification was tainted, an in-court identification does not violate defendant's due process rights if the in-court identification had a source independent of the out-of-court identification. State v. Bland, 310 So.2d 622 (La. 1975); State v. Newman, 283 So.2d 756 (La. 1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974). A determination of whether the witness's in-court identification is based upon an independent source involves these factors: (1) the prior acquaintance of the witness with the accused; (2) length of time the witness observed the perpetrator before, during, and after commission of the offense; (3) the circumstances under which the observation was made, including illumination at the scene and physical capacities and emotional state of the witness at the time of observation. Bland, supra.

         The crime of second degree robbery is set forth in La. R.S. 14:64.4 as follows:

A. (1) Second degree robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.
(2) For purposes of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

         Thus, to convict defendant of second degree robbery, it is necessary for the state to prove: (1) the taking of (2) anything of value (3) belonging to another from the person of another or that is in the immediate control of another (4) when the offender intentionally inflicts serious bodily injury. State v. Wiggins, 44, 616 (La.App. 2 Cir. 9/23/09), 22 So.3d 1039, writ denied, 09-2329 (La. 4/23/10), 34 So.3d 271.

         At the trial of this matter, Warren C. Perkins, the 71-year-old victim, testified that he was self-employed at his body shop in Caddo Parish. He testified that, on July 17, 2013, shortly before closing, a man he identified in court as Brown came into his business. Brown told Perkins that he had a friend who was going to bring his wrecked truck to the body shop. As his employees were gathered in the front of the business, Perkins went to his office to complete some work. Perkins sat down at his computer when Brown entered the office. As Perkins completed his work, he asked Brown when his friend was going to get to the body shop. According to Perkins, he gave his phone to Brown who "faked a phone call." Perkins stated that after his employees left, Brown, who was sitting across the desk from him, "jumped up, grabbed me in the hair of the head with one hand and went to work on the side of my face with the other one."

         Perkins testified that Brown "took all the money I had in my pocket, " amounting to more than $9, 000.00. Perkins testified that Brown also removed his wallet, which had some money in it, as well as his driver's license and VA card. The only thing that Perkins remembered Brown saying was "give me that [GD] money."

         Perkins testified that one of his employees returned to the shop, saw the doors open and Perkins' truck still there, and began looking for him. Perkins testified that he was "probably 60 or 70 yards down the lot." When he regained consciousness, emergency personnel were taking care of him. Perkins testified that while he was at the hospital, he was able to pick Brown out of a photographic lineup.

         Perkins stated that he had a prior interaction with Brown three days before the subject incident when Brown came to the body shop and told Perkins that he had "some compressors to sell." On that occasion, Perkins did not participate in a transaction with Brown, but he gave him $100.00 from his pocket after Brown told him he was "in bad shape" and "needed a place to stay." On the day he gave Brown money, Perkins had a large handful of money in his pocket and pulled it out to give some to Brown.

         Perkins testified that after he gave the officers a description of the suspect, they presented him with two photographic lineups. When shown one of the lineups at trial ("S-1") Perkins was unable to identify the lineup. Perkins recalled that while at the hospital he was unable to identify anyone in the first lineup shown to him; however, when shown the second lineup at the hospital, Perkins testified that he put his finger on the picture. Perkins was shown a second lineup at trial ("S-2") and was able to put his finger on a photograph. From the second lineup, Perkins testified that he identified Brown as the person who attacked him. Perkins identified his signature on S-2 with a date of July 18, 2013. Perkins testified that his identification of Brown as the perpetrator was based upon the two times he saw him at the body shop. Perkins stated that at the time of trial, Brown had "cleaned up a lot, " and gained weight.

         Perkins identified four photographs depicting his injuries before and after surgery. Perkins revealed that he had been diagnosed with prostate cancer and because of his injuries, was forced to delay his treatment which was scheduled to begin the day after this incident.[7] Although his injuries have healed, Perkins testified that he has experienced residual effects, such as not being able to "see things level anymore, " and movement of his jaw.

         On cross-examination, Perkins stated that he did not recall giving the police a description of Brown, but knew that he gave a description of the car Brown drove including the fact that the driver's door was damaged. Perkins testified that he recalled what Brown looked like and remembered him being skinnier, about "six feet, " wearing blue jeans and an untucked shirt. Although Perkins did not recall giving anyone a description of the assailant's complexion, he conceded that he may have told the officer that the suspect was a dark-skinned male who was about 5'9" or 5'10." Perkins conceded that the assailant's skin was darker than his counsel's complexion, but ...

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