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State ex rel. D.M.

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

STATE OF LOUISIANA IN THE INTEREST OF D.M.

         Appealed from the Second Judicial District Court Parish of Claiborne, Louisiana Trial Court No. 8142JD Honorable Jenifer Ward Clason, Judge

          LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

          DANNY W. NEWELL District Attorney Counsel for Appellee

          TERESA CULPEPPER CARROLL LISA RYDER Assistant District Attorneys

          Before PITMAN, STONE, and GASKINS (Pro Tempore), JJ.

          GASKINS (PRO TEMPORE), J.

         Before the court is the appeal of D.M., a juvenile adjudicated delinquent for the armed robbery of James Peaden ("Mr. Peaden"). D.M. specifies three errors: (1) there was insufficient evidence for his conviction; (2) the lower court erred in refusing to grant his motion to suppress the photographic lineup identification; and (3) the trial court erred in refusing to suppress the in-court identification. For the reasons stated hereinafter, we affirm and remand with instructions.

         FACTS AND PROCEDURAL HISTORY

         On February 2, 2017, Mr. Peaden ate lunch at Som-T-Eat, a restaurant in Claiborne Parish, Louisiana. When he finished eating, he exited the restaurant and walked to his truck, whereupon he discovered D.M. lying in the truck's bed against the cab. Mr. Peaden recognized D.M.'s face from "the day or the day before" when the pair shared a table at the same restaurant. Mr. Peaden offered to give him a ride and invited him to ride in the cab of the truck. D.M. asked for a ride to Homer Plaza, and initially declined to ride in the cab. During the trip, D.M. tapped on the window and indicated that he wanted to ride in the cab; Mr. Peaden obliged. After riding in the cab a while, D.M. instructed Mr. Peaden to "pull over, " and Mr. Peaden did so. Thereupon, Mr. Peaden realized that D.M. was pointing a handgun at him. D.M. ordered Mr. Peaden to get out of the vehicle. Both of them exited the truck and walked in front of it. With the pistol pointed at Mr. Peaden's head, D.M. said "give me all your money." Mr. Peaden complied, giving D.M. approximately $27. Thereafter, D.M. got in the truck and "kept revving the motor a little bit like he couldn't put it in gear." He then exited the truck, again pointing the gun at Mr. Peaden's head, and demanded Mr. Peaden's cell phone. Mr. Peaden replied that he had no cell phone. D.M. pulled a ski mask down over his face, removed it after approximately 10 seconds, and then got back in the truck. He drove away, leaving Mr. Peaden, a 79-year-old, on foot in a rural area.

         Mr. Peaden began walking to the Hill Farm Research Station, which was roughly a mile from where D.M. left him. He hitchhiked part of the way and called the sheriff's department upon arrival. Captain Jimmy Brown responded to Mr. Peaden's call. Mr. Peaden was still too upset to write at this point; therefore, he instead dictated a statement to Captain Brown, who handwrote Mr. Peaden's statement and had him sign it. This written statement, according to Captain Brown's testimony, contained "the entirety" of what Mr. Peaden told him that day.

         Captain Brown testified that Mr. Peaden described the perpetrator as a black male with a small mustache, approximately 5'8'', wearing blue jeans, a light-colored shirt, and a jacket. He also testified that Mr. Peaden said the gun was a small revolver, possibly a .32-caliber. Mr. Peaden did not mention to Captain Brown that he and D.M. had shared a table at the restaurant; however, Captain Brown did not recall ever asking Mr. Peaden if he knew the perpetrator.[1]

         Detective Randy Smith was another officer involved in the investigation. He heard a description of the perpetrator over the police radio, and upon learning that the incident began at Som-T-Eat restaurant, suspected that the perpetrator was D.M. Detective Smith explained that he knew that D.M.'s parents own the restaurant and that D. M.'s family lives next door to it.

         Detective Smith submitted a request for a photographic lineup to the Louisiana State Police Investigation Unit and included D.M.'s name and Louisiana identification number in the submission. The Louisiana State Police Investigation Unit sent a computer-generated six-person photographic lineup to Detective Smith, which included D.M. This lineup was admitted into evidence.

         On the night of February 3, 2017, Detective Smith and another officer went to Mr. Peaden's residence and presented him with the photographic lineup. Mr. Peaden picked photograph number three, i.e., that of D.M. However, before choosing D.M., he eliminated four others in the lineup, then looked back and forth between D.M.'s picture and one other, then chose D.M.

         On February 9, 2017, D.M. was charged by petition in Juvenile Court with the armed robbery of Mr. Peaden in violation of La. R. S. 14:64. On March 20, 2017, D. M. filed a motion to suppress the photographic lineup as unduly suggestive; the trial court referred the motion to the merits. On May 10, 2017, D.M.'s adjudication hearing was held. That day, Mr. Peaden identified D.M. in open court as the young man who robbed him.

         In an attempt to establish an alibi, D.M. called several witnesses at trial. D.M.'s brother, Josh Ealy, testified that he and D.M. were at Jeremy Washington's house during the time frame within which the robbery took place. However, Jeremy Washington and his mother (both of whom were called by the prosecution) told police that D.M. had not been at their house on the day of the robbery; they acknowledged and affirmed these statements at trial. Furthermore, Jeremy Washington told police that DM's brother had called and told Jeremy to tell the police (if they questioned him) that DM had been at Jeremy's house the day the robbery.

         D.M. called his uncles, Eddie Walker and Isaac Walker, and also Earl Amos. The uncles testified that while riding in the truck together on the day of the robbery, they saw an unknown pedestrian in the Athens area. One uncle testified that he did not see the pedestrian's face, while the other testified that he did, and that it was an unfamiliar male. Both uncles testified that this person was wearing a hoodie. Contrary to the uncles' testimony, Earl Amos identified this person as D.M. However, Amos testified that he could not remember the day this happened.

         Verlene Manuel and Alton Manuel, D.M.'s mother and father, testified that D.M. occasionally worked at the restaurant and had served Mr. Peaden food before. They also recounted that on the day of the robbery, an unfamiliar young African-American male came to the restaurant and has not been seen since. ...


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