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
FREDERICK LUJUAN BROWN Pro Se.
EDWARD STEWART, SR. District Attorney Counsel for Appellee.
JAN JOHNSON MEKISHA SMITH CREAL Assistant District Attorneys.
PITMAN, STONE, and COX, JJ.
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.
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. 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.
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.
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. 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.
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,  and this appeal ensued.
of the Evidence
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. 
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.
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.
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.
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.
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.
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).
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.
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.
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.
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."
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."
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.
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.
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.
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. 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.
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 ...