FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 495-802,
SECTION "G" Honorable Byron C. Williams, Judge.
A. Cannizzaro, Jr. DISTRICT ATTORNEY ORLEANS PARISH Donna
Andrieu, Chief of Appeals Mithun Kamath Kyle Daly Laura
Cannizzaro Assistant District Attorney COUNSEL FOR THE STATE
Christopher J. Murell Erica L. Navalance COUNSEL FOR
composed of Judge Terri F. Love, Judge Paula A. Brown, Judge
Dennis R. Bagneris, Pro Tempore 
A. Brown, Judge.
a criminal appeal. Defendant, Dajuan A. Alridge
("Dajuan") seeks review of his conviction of second
degree murder and his sentence of life imprisonment without
the benefit of parole. For the reasons set forth below, we
affirm Dajuan's conviction and sentence.
March 25, 2010, Dajuan and co-defendant, Dennis Lewis
("Dennis")- two seventeen-year-olds-were indicted
by the grand jury for the charge of second degree murder of
fifteen-year-old James McKenzie
("James"). A jury trial commenced on October 19,
2015, and concluded on October 21, 2015. With an eleven to
one vote, the jury convicted Dajuan of second degree murder,
a violation of La. R.S. 14:30.1. Prior to sentencing, Dajuan
filed motions for new trial and post-verdict judgment of
acquittal, which the district court denied. On June 16, 2016,
Dajuan was sentenced to life imprisonment at hard labor
without the benefit of parole. This appeal followed.
to La.C.Cr.P. art. 920, a review for errors patent on the
face of the record reveals no errors.
and James lived in the same neighborhood on Hauck Drive in
New Orleans, Louisiana. On the morning of November 30, 2009,
Dennis asked James to go with him to an abandoned house in
the neighborhood. Dajuan was with Dennis. While at the
abandoned house, Dennis held James from behind while Dajuan
stabbed James forty-nine times. James was found dead in the
abandoned house; and his face was wrapped in duct tape and
his body was covered in a sheet of plastic.
the three days of trial, the following pertinent testimony
Enclade ("Ms. Enclade"), James' mother,
recalled that on November 30, 2009, she went to work, leaving
James at home to babysit his youngest brother, five-year-old
Ms. Enclade lived on Hauck Drive. While at work, she
attempted to call James, but she did not reach him. When she
returned from work, K.S. told her that James left the house
that morning with Dennis and a "boy with dreads."
When James did not come home that night or the following day,
Ms. Enclade called the police and reported James missing.
Enclade testified that Dennis had threatened James at
knifepoint on Thanksgiving Day, and Dennis accused James of
stealing his gun. Ms. Enclade also stated she was aware
Dennis recruited someone to help him reclaim his gun. Ms.
Enclade made several attempts to speak to Dennis' mother
about James' disappearance. On Saturday, December 5,
2009, Ms. Enclade walked to Dennis' house and confronted
Dennis' mother. Dennis' mother denied that she and
her son knew anything about James' disappearance.
Ms. Enclade, her family, and friends began canvassing the
neighborhood on December 5, 2009, with flyers requesting
information on James; and the flyer had a picture of James on
it. The neighbors began telling the family members
information. Ms. Enclade testified that "[t[he neighbors
was [sic] coming out, saying they heard, stuff they seen,
Dennis and my son . . . and another boy, walking up the
street." Another neighbor told Ms. Enclade he smelled
smoke coming from the backyard of Dennis' home on Monday,
November 30, 2009. Ms. Enclade testified that based on
information from the neighbors, her family members entered an
abandoned house on the corner and found James' body.
Debra Norman ("Detective Norman"), employed by the
New Orleans Police Department ("NOPD"), testified
that she was dispatched on December 5, 2009, to Hauck Drive
on a disturbance call. As she arrived on the scene, Detective
Norman noticed people posting pictures of a missing person.
Detective Norman learned that a neighbor saw Dennis burning
clothes in the backyard of his mother's house on November
30, 2009. Detective Norman entered the backyard to
investigate the report and discovered a pile of burned
clothing on the ground. At the time she made that discovery,
she heard screams coming from the abandoned house on the
corner of Hauck Drive and Prentiss Street. She relocated to
the house and found James' body.
same day, December 5, 2009, Dennis was taken to the police
station where he was interrogated by Detective Orlando
Matthews ("Detective Matthews"). During the
interrogation, Dennis gave several statements to police
including a statement implicating Dajuan as the person who
trial, Dennis denied killing James and explained he pled
guilty because, "[i]f I got a paid lawyer, you [the
State] wouldn't be able to use the [Dennis']
statements." Dennis expounded he confessed to the police
that he stabbed James to protect his mother from the threat
made by the police to put her in jail. When questioned by the
State about how he knew details about the crime scene such as
where the victim's body was found, and that the body was
covered with plastic, Dennis said that Detective Matthews
told him. Dennis continued to deny any involvement in the
murder and said he never told his mother he stabbed the
Dennis denied any involvement in the murder, the State played
a portion of a videotaped statement taken during Dennis'
interrogation at the police station. This portion of the
video depicted Dennis in a room with his mother, and Dennis
telling his mother that Dajuan stabbed James. At that time,
Detective Matthews had left the room.
the playing of the video, Dennis admitted, at trial, that he
had stabbed James, but he denied Dajuan was involved. Dennis
explained that James stole his gun and that James took it
from his "stash spot" in the neighborhood. Dennis
admitted the last time he saw James was when they left
together from James' house. Dennis recalled he and James
went into an abandoned house; he told James they were going
to talk about something. When the two entered the abandoned
house, Dennis began hitting James and James tried to fight
back. Dennis found a knife in the house and began stabbing
James. When asked how he stabbed James, Dennis testified that
he "just grabbed him and started stabbing." Dennis
stated James tried to run, but he held James down. After
Dennis stabbed James, he wrapped James' face with duct
tape. Dennis testified he left before James died. Dennis
stated he burned his and James' clothes in the backyard
of his home to get rid of the evidence.
Dennis continued to deny any involvement by Dajuan, the State
played the entire videotaped statements given by Dennis to
police. Notably, in the last statement to
Detective Matthews, Dennis stated he went to James' house
on the morning of November 30, 2009. He wanted to confront
James about stealing his gun. He continued explaining that he
and Dajuan lured James to an abandoned house on Hauck Drive
to smoke marijuana. According to Dennis, because James
continued to deny stealing his gun, Dajuan stabbed James
multiple times while Dennis held James from behind. Dennis
stated he found a knife in the house, and later, he threw the
knife in the river. Dennis wrapped James' face and head
in duct tape and covered the body with a sheet of plastic. He
and Dajuan returned to Dennis' house where Dennis burned
his, Dajuan's, and James' blood-stained clothing and
shoes. Dennis gave to Dajuan some of his clothing
and a pair of his sister's shoes, which had rainbow
shoelaces, for Dajuan to wear home.
the jury heard the videotaped statements, Dennis retracted
his statement that Dajuan stabbed James. He explained he lied
about Dajuan stabbing James so his mother would think he was
innocent of the murder, and Dennis stated he perjured himself
at trial when he testified he did not kill James. Dennis
testified he lied when he said he gave Dajuan his
sister's shoes to wear home after the murder. Dennis
explained he saw Dajuan purchase the women's shoes from
Footlocker. When Dajuan was arrested, he was wearing
women's tennis shoes similar to the description Dennis
gave in his statement. Dennis identified the shoes at trial.
When confronted by the State with the fact that two different
sized shoe prints were left at the murder scene, Dennis
claimed one print belonged to him and the other to the
NOPD Detective John Duzac (Mr. Duzac) testified that in 2009
he was assigned to the Crime Task Force with the FBI, and he
was dispatched to Hauck Drive on December 5, 2009. Mr. Duzac
said that during the course of his investigation, he learned
Dennis threatened the victim with a knife on Thanksgiving
Day. Additionally, he discovered that a neighbor had seen
Dennis burning items in Dennis' backyard.
Duzac obtained evidence of the burned clothing retrieved from
the rear of Dennis' residence on Hauck Drive; the
evidence included three socks-one pair of socks and a single
Duzac identified photographs of the scene. Many of the
photographs depicted bloody footprints taken at the
scene. Mr. Duzac testified one of the footprints
measured 280 millimeters and another footprint measured 245
millimeters. Mr. Duzac estimated one was about a size 10 and
the other about a size 7. Mr. Duzac explained the smaller
footprint was photographed at the scene of the crime on
December 8, 2009. Mr. Duzac recalled, when Dajuan was
arrested, he was wearing a pair of tennis shoes. These shoes
were introduced into evidence and published to the jury; they
were identified as "[o]ne pair of rainbow colored Nike
tennis shoes, size 6."K.S.
James' brother, was eleven years old and in the sixth
grade at the time of trial. K.S. testified the last day he
saw James was November 30, 2009, at their home. K.S. stated
James left the house with "Dennis" and "the
other person with dreads." K.S. recalled being brought
to the Child Advocacy Center at Children's Hospital in
New Orleans ("Center") and speaking to a person
about what happened the morning James disappeared. The
interview occurred on December 14, 2009. At the Center, K.S.
identified two people from pictures he viewed in separate
photographic line-ups. From one photographic lineup, K.S.
identified the "boy with dreads, " and he
acknowledged he circled Dajuan's picture in the line-up
with a crayon. From the second photographic lineup, K.S.
identified Dennis, and he acknowledged he circled Dennis'
picture in the line-up with a crayon.
Dooley ("Mr. Dooley"), a forensic interviewer at
the Center, testified he interviewed K.S. on December 14,
2009. Mr. Dooley testified that K.S.
identified, and circled in crayon, one picture from each
Samantha Huber, Chief Forensic Pathologist for the New
Orleans coroner's office, autopsied the victim's
body. Dr. Huber testified the victim bled to death after
being stabbed forty-nine times. Most of the wounds were
delivered to the victim's chest and abdomen. Those wounds
incised the victim's lungs, liver, stomach and heart. She
noted that some of the stab wounds were made to his arms and
legs, as if the victim was defending himself. She also noted
that the back of the victim's body did not exhibit any
stab wounds. Dr. Huber testified that the injuries inflicted
were not inconsistent with there being two perpetrators with
one of the perpetrators holding the victim. Dr. Huber
recalled that when she received the victim's body at the
morgue, the clothing on the body included green shorts, boxer
shorts, white undershirt, and pair of white socks that were
blood soaked. Dr. Huber was of the opinion the bottom of the
soles of the socks were blood-soaked because James may have
stepped in his blood and/or he was standing up when he was
jailhouse calls of Dajuan to his family and friends were
played for the jury. The pertinent content of the calls
included: (1) Dajuan stating that Dennis was one of his best
friends, but they had different friends; (2) Dajuan referring
to Dennis as his "fall-partner"; and (3) an unnamed
person offered to find someone to testify on Dajuan's
assigns fourteen errors. These assignments of error have been
addressed out-of-order and some, that are interrelated, were
OF ERROR NO. 2: INSUFFICIENT EVIDENCE
challenges his conviction asserting the State presented
insufficient evidence to support the jury's conviction of
second-degree murder, violating Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781 (1979).
issues are raised on appeal as to the sufficiency of the
evidence, and as to one or more trial errors, the reviewing
court must first determine the sufficiency of the
evidence." State v. George, 15-1189, p. 9
(La.App. 4 Cir. 11/9/16), 204 So.3d 704, 711 (quoting
State v. Marcantel, 00-1629, p. 8 (La. 4/3/02), 815
So.2d 50, 55). This Court, in State v. Hickman,
15-0817, p. 9 (La.App. 4 Cir. 5/16/16), 194 So.3d 1160,
1165-66 (quoting State v. Brown, 03-0897, p. 22 (La.
4/12/05), 907 So.2d 1, 18), set forth the standard for
determining a claim of insufficiency of the evidence as
When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this
standard, the appellate court "must determine that the
evidence, viewed in the light most favorable to the
prosecution, was sufficient to convince a rational trier of
fact that all of the elements of the crime had been proved
beyond a reasonable doubt." State v. Neal,
00-0674 (La.6/29/01) 796 So.2d 649, 657 (citing State
v. Captville, 448 So.2d 676, 678 (La. 1984)).
circumstantial evidence forms the basis of the conviction,
such evidence must consist of proof of collateral facts and
circumstances from which the existence of the main fact may
be inferred according to reason and common experience."
State v. Egana, 97-0318, p. 6 (La.App. 4 Cir.
12/3/97), 703 So.2d 223, 228 (citing State v.
Shapiro, 431 So.2d 372 (La.1982)). Whether
circumstantial evidence excludes every reasonable hypothesis
of innocence presents a question of law. Shapiro,
431 So.2d at 384 (citations omitted).
"[i]f rational triers of fact could disagree as to the
interpretation of the evidence, the rational trier's view
of all of the evidence most favorable to the prosecution must
be adopted." State v. Green, 588 So.2d 757, 758
(La.App. 4 Cir. 1991) (citation omitted). It is not the
function of the appellate court to assess the credibility of
witnesses or reweigh the evidence and credibility
determinations; the weight attributed to the evidence is
soundly within the province of the fact finder. State v.
Scott, 12-1603, p. 11 (La.App. 4 Cir. 12/23/13), 131
So.3d 501, 508 (citing State v. Johnson, 619 So.2d
1102, 1109 (La.App. 4 Cir. 1993) and State v.
Brumfield, 93-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d
312, 316). Therefore, "[c]onflicting testimony as to
factual matters is a question of weight of the evidence, not
sufficiency." State v. Jones, 537 So.2d 1244,
1249 (La.App. 4 Cir. 1989) (citation omitted). Moreover,
"[a]bsent internal contradiction or irreconcilable
conflict with physical evidence, a single eyewitness'
testimony, if believed by the fact finder, is sufficient to
support a factual conclusion." State v.
Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362,
369 (citation omitted).
case sub judice, the State had the burden to prove
(1) the killing of a human being; (2) with specific intent to
kill; and (3) that Dajuan was the perpetrator. La. R.S.
14:30.1; State v. Scott, 15-0778, p. 10 (La.App. 4
Cir. 6/29/16), 197 So.3d 298, 304-05, writ denied,
16-1542 (La. 6/5/17), 219 So.3d 339. Applying the
Jackson standard, a trier-of-fact could have found
beyond a reasonable doubt that a perpetrator intended to kill
James when he stabbed James forty-nine times, and James died
as a result; thus, the first two elements, which are
uncontested by Dajuan, are met.
does, however, assert that the State failed to prove he was
the perpetrator. It is well settled that "=[w]here the
key issue is identification, the state is required to negate
any reasonable probability of misidentification in order to
carry its burden of proof.'" Scott,
15-0778, p. 10, 197 So.3d at 305 (quoting State v.
White, 14-0397, pp. 18-19 (La.App. 4 Cir. 7/29/15), 174
So.3d 177, 189).
contends Dennis alone committed the crime. Dajuan argues that
"there is no credible forensic evidence and no competent
witnesses" proving he committed the murder.
inconsistent testimony and statements
first asserts Dennis was incompetent, and his testimony and
statements were inconsistent:
It was only after Dennis was handcuffed to an interrogation
table for four hours, repeatedly told by the police that they
did not believe that he committed the crime alone, and that
they were going to arrest his mother, that Dennis said Dajuan
was involved. . . . This interrogation, on December 5, 2009,
was the last time that Dennis ever claimed that Dajuan was
involved in the murder.
* * *
Dennis' testimony was so illogical that no rational trier
of fact could have given weight to his prior statements. . .
. The only unequivocal statement Dennis made throughout his
testimony was that Dajuan was not involved in this crime.
Under either circumstance, Dennis's testimony, the only
person present when the victim was murdered, failed to
establish beyond a reasonable doubt that Dajuan participated
or was present during this crime.
State in Interest of K.M., 14-0306 (La.App. 4 Cir.
7/23/14), 146 So.3d 865, the juvenile, K.M., was charged with
simple assault against his mother after threatening to stab
his mother in the face. At the adjudication hearing, the
mother's testimony differed from the statement she gave
to police. K.M.'s mother testified that she did not hear
her son threaten her, and she did not believe that her son
would stab or harm her. Id. 14-0306, p. 1, 146 So.3d
at 868. In reviewing the sufficiency of the evidence, this
Court considered whether the evidence presented by the state,
i.e. the prior inconsistent statement made by the
mother to police, was sufficient to sustain the adjudication
of K.M. beyond a reasonable doubt. Id. 14-0306, p.
8, 146 So.3d at 871. In affirming the conviction, this Court
explained the fact the mother's testimony at trial was
inconsistent with her statement given to police was a
credibility determination to be made by the trier of fact:
[W]hen conflicting testimony about factual matters exits
[sic], the resolution of which depends upon a determination
of the relative credibility of the witnesses, the matter is a
question of weight of the evidence, not its sufficiency.
State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th
Cir.1989); see also Tibbs v. Florida, 457 U.S. 31,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Such a determination
rests solely with the trier of fact who may accept or reject,
in whole or in part, the testimony of any witness.
Id. A trier of fact's determination as to the
credibility of a witness is a question of fact entitled to
great weight, and its determination will not be disturbed
unless it is clearly contrary to the evidence. State in
the Interest of T.C., 09-1669 at p. 6, 60 So.3d at 1263.
State in Interest of K.M., 14-0306, p. 10, 146 So.3d
case sub judice, the jury accepted Dennis'
statement implicating Dajuan and rejected Dennis'
further contends the jury's determination was not
supported by the evidence. Dajuan asserts: (1) K.S.'s
testimony as unreliable; (2) the footprint evidence was
unreliable; (3) Dr. Huber's testimony was
"ambiguous" and did not implicate him; and (4) the
other witnesses' testimony exclusively linked Dennis to
the crime. We disagree.
identification was corroborated by Mr. Dooley and Dennis.
Additionally, the jurors were able to consider K.S.'s age
and weigh his credibility. Dr. Huber testified that the
injuries James sustained were not inconsistent with there
being two perpetrators. The jury heard testimony of the
burned clothing recovered from Dennis' home, which
consisted of three socks-a pair of socks and a single sock,
and that James had on both of his socks when Dr. Huber
performed the autopsy. The jurors were likewise shown
pictures depicting the bloody footprints and heard exhaustive
testimony about the two different-sized footprints, one
footprint being smaller than the other footprints. Moreover,
the women's size 6 tennis shoes, that were worn by Dajuan
when he was arrested, matched the description Dennis gave in
his statement to police. We find the jury's credibility
determination of Dennis' statement implicating Dajuan was
not clearly contrary to the evidence presented.
the Jackson standard, viewing the evidence in the
light most favorable to the State, we find a rational trier
of fact could have found the State negated any reasonable
probability of misidentification and proved beyond a
reasonable doubt that Dajuan killed James. This assignment of
error lacks merit.
OF ERROR NO. 3: INCOMPETENCE OF DENNIS
challenges Dennis' testimony on the basis that it was
erratic, and Dennis lacked competency. Dajuan argues the
district court erred by allowing Dennis to testify
considering: (1) he had a documented history of
schizophrenia; (2) he had been institutionalized in a mental
facility; (3) he was not taking his prescribed medication at
the time of his testimony; and (4) he was found incompetent
at least once prior to trial. Additionally, Dajuan contends
the district court erred in failing to conduct a competency
hearing when the defense requested one during Dennis'
testimony. Dajuan asserts because Dennis was a mental
patient, the district court was required to hold a competency
hearing citing Shuler v. Wainwright, 491 F.2d 1213
(5th Cir. 1974).
Shuler, a fifty-six year old woman was forced from
her home by intruders, beaten, and raped. Id., 491
F.2d at 1215. Due to the injuries sustained in the attack,
she became incompetent, and she was committed to a mental
institution. At the time of the trial, she was still in the
mental institution. On appeal to the United States Fifth
Circuit Court of Appeal, the defendant asserted the state
failed to voluntarily furnish the defense with a copy of the
victim's statement resulting in a violation of his due
process rights. In discussing the assigned error, the
court addressed the victim's competency and set forth the
applicable law if a witness, such as the victim, testified at
If a patient in a mental institution is offered as a witness,
the opposing party has a right to challenge his competency,
whereupon it becomes the duty of the Court to make such
examination as will satisfy it of the competency or
incompetency of the proposed witness. . . . The findings of
the trial court may not be rejected on review except for an
abuse of discretion . . . .
Shuler, 491 F.2d at 1223-4 (citations omitted).
Shuler inapplicable. Unlike the victim in
Shuler, Dennis was not in a mental institution at
the time of trial. Additionally, we find the district court
did not err in allowing Dennis to testify.
Code of Evidence Article 601 provides that "[e]very
person of proper understanding is competent to be a witness
except as otherwise provided by legislation."
Understanding, not age, is the test of whether any person
shall be sworn as a witness. State v. Deutor,
02-1869, p. 6 (La.App. 4 Cir. 3/19/03), 842 So.2d 438, 442
(citation omitted). "A key determination to be made is
whether the witness is able to understand the difference
between truth and falsehoods." Id. Great weight
is given to the trial judge's determination of competency
because of his or her opportunity to see and hear the
witness. Id. 02-1869, pp. 6-7, 842 So.2d at 442.
was declared incompetent on August 1, 2013, and remanded to a
Louisiana mental facility. After several delays, a competency
hearing was held on January 9, 2014, and Dennis was found
competent to proceed. Another mental competency hearing was
held on April 23, 2015, and Dennis was declared competent. On
April 24, 2015, Dennis entered a guilty plea to manslaughter,
and he was sentenced to forty years at hard labor. Dennis
testified at trial in October 2015.
Dennis was found competent, the record is devoid of any
reference or concern as to Dennis' competency. When the
defense raised the issue at trial, Dennis insisted he was
competent. His competency was supported by his testimony that
relayed his understanding of criminal proceedings; Dennis
stated that if he hired a private lawyer, the State would not
have been able to use his statements. Further, Dennis
demonstrated to the district court he understood the
difference between truth and falsehoods; Dennis admitted
several times he lied about Dajuan killing James, burning
Dajuan's shoes, and lending Dajuan his sister's
shoes. Accordingly, we find the district court did not err in
failing to conduct a competency hearing and by allowing
Dennis to testify. This assignment of error lacks merit.
OF ERROR NO. 10: SUGGESTIVE IDENTIFICATION
asserts the district court erred in failing to suppress
K.S.'s identification of him as one of the perpetrators.
Dajuan argues the photographic lineup was unduly suggestive
as his picture was one of only two pictures in the
photographic lineup in which the subjects were in orange
defendant has the burden of showing that (1) an
identification was suggestive and (2) the procedure resulted
in the likelihood of misidentification. State v.
Holmes, 05-1248, p. 6 (La.App. 4 Cir. 5/10/06), 931
So.2d 1157, 1161 (citations omitted). A trial court's
ruling on the admissibility of an identification is entitled
to great weight and must not be disturbed unless the trial
court abused its discretion by so ruling. State v.
Dove, 15-0783, p. 26 (La.App. 4 Cir. 5/4/16), 194 So.3d
92, 110, writ denied, 16-1081 (La. 6/29/17), 222
So.3d 48, cert. denied, U.S. ___, 2018 WL 1369180,
at *1 (2018).
"suggestive identification" is one that unduly
focuses a witness' attention on a defendant. Id.
"Strict identity of physical characteristics among the
persons depicted in the photographic array is not required;
however, there must be sufficient resemblance to reasonably
test the identification." State v. Francois,
13-616, p. 16 (La.App. 5 Cir. 1/31/14), 134 So.3d 42, 53
(citation omitted). This determination is made by examining
articulable features of the persons' pictures such as
height, weight, build, hair color, facial hair, skin color
and complexion, and the shape and size of the nose, eyes, and
present case, the six-person photographic color lineup is on
a single sheet of paper which contains two rows of three
photographs. All of the photographs are the same size and
shape and depict the head and upper chest of the subjects
against a neutral color background. The subjects are
African-American males of roughly the same age, skin tone,
facial features, hair-styled in dreadlocks, and sporting
light/sparse mustaches. Although Dajuan complains he is
depicted in an orange jumpsuit, another man in the lineup has
the same orange shirt/jumpsuit with a collar. Of the
remaining four men, two are clothed in white t-shirts and the
remaining two men are wearing shirts with black collars.
Additionally, Dajuan's picture is positioned in the
middle of the bottom row, between the picture of the man in
an orange shirt/jumpsuit with a collar and the man with a
black collar. We conclude Dajuan failed to prove the
photographic line-up was unduly suggestive, and a review of
the photographic line-up does not suggest a possibility of
misidentification by K.S.
assuming that the photographic lineup was unduly suggestive,
Dajuan failed to show there was a substantial likelihood that
K.S. misidentified him. In State v.
Shannon, 11-0955, pp. 8-9 (La.App. 4 Cir. 9/19/12), 101
So.3d 67, 73, this Court set forth the applicable law when
addressing a claim concerning an alleged suggestive
Even if the identification could be considered suggestive, it
is the likelihood of misidentification that violates due
process, not merely the suggestive identification procedure.
State v. Payne, 04-828, pp. 4-5 (La.App. 5 Cir.
12/14/04), 892 So.2d 51, 53. Fairness is the standard of
review for identification procedures, and reliability is the
linchpin in determining the admissibility of identification
testimony. Manson v. Brathwaite, 432 U.S. 98,
113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Even a
suggestive, out-of-court identification will be admissible if
it is found reliable under the totality of circumstances.
State v. Guy, 95-0899, pp. 9-10 (La.App. 4 Cir.
1/31/96), 669 So.2d 517, 523.
In Manson, supra, the Court set forth a
five-factor test to determine whether a suggestive
identification is reliable, to-wit: (1) the opportunity of
the witness to view the assailant at the time of the crime;
(2) the witness' degree of attention; (3) the accuracy of
the witness' prior description of the assailant; (4) the
level of certainty demonstrated by the witness; and (5) the
length of time between the crime and the confrontation.
Id., 432 U.S. at 114-16, 97 S.Ct. 2243, citing
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.
375, 34 L.Ed.2d 401 (1972). In determining the likelihood of
misidentification of a suspect, a court must look to the
"totality of the circumstances" as informed by the
five factors. Neil, 409 U.S. at 199, 93 S.Ct. 375. In
evaluating the defendant's argument, the reviewing court
may consider all pertinent evidence adduced at the trial and
at a hearing on the motion to suppress the identification.
State v. Lewis, 04-0227, p. 18 (La.App. 4 Cir.
9/29/04), 885 So.2d 641, 652. A trial court's
determination on 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.
Offray, 00-0959, p. 5 (La.App. 4 Cir. 9/26/01), 797
So.2d 764, 769, citing State v. Bickham, 404 So.2d
the Manson factors, we find the identification was
reliable. K.S. testified Dennis and the "boy with
dreads" came to his home, and James left with them. K.S.
was home alone with James, when Dennis, who he knew from the
neighborhood, and Dajuan, an unknown person, came to the
door. K.S.'s description of Dajuan as having
"dreads" is consistent with Dajuan's image in
the picture K.S. identified from the photographic lineup.
K.S. was certain when he circled Dajuan's picture with a
crayon and was unequivocal in his identification of Dajuan.
K.S. identified Dajuan from the lineup only two weeks after
the murder. Finally, K.S. distinguished Dajuan from the other
suspect in the photographic lineup who wore an orange
shirt/jumpsuit just like Dajuan. Accordingly, we find the
district court did abuse its discretion in denying the
suppression of K.S.'s identification of Dajuan.
assignment of error lacks merit.
OF ERROR NOS. 11 AND 12: VIDEOTAPED STATEMENT
complains his Sixth Amendment rights were violated by the
State's failure to turn over to the defense, during
discovery, the portion of Dennis' videotaped statement in
which Dennis told his mother Dajuan stabbed the victim.
Discovery of video
opening statements, the State disclosed to the jury that they
would view and/or hear Dennis' videotaped statement to
police. The State pointed out that the videotape contained a
segment between Dennis and his mother in which Dennis tells
his mother Dajuan stabbed James. The defense objected on the
basis it had never received that portion of the videotape
depicting this exchange. The district court overruled the
objection. The defense suggested that the objection be
discussed with the court later, and the judge agreed. The
record contains no further objection to the admissibility of
videotaped statements on discovery grounds.
State avers, in its brief, that it turned over the entire
videotaped statements given by Dennis to police in a timely
manner prior to trial. The State explains the issue was
clarified during a bench conference which established that
the defense failed to view the video in its entirety. Dajuan
responds the bench conference was not recorded; thus, there
is no way to determine what happened.
assuming the State failed to disclose the portion of the
video of Dennis interacting with his mother, the defense was
aware of Dennis' statement given to Detective Matthews in
which Dennis professed that Dajuan stabbed James. In the
opening statement, the defense detailed Dennis'
interrogation and pointed out: "When the police comes
[sic] back in . . . .You know what the first thing [Dennis]
says. . . Dajuan did it with me." Thus, we find this
alleged discovery violation, if proven, would be harmless.
See State v. Garrick, 03-0137, p. 5 (La. 4/14/04),
870 So.2d 990, 993 (citations omitted) (where the Supreme
Court explained that "generally . . . discovery
violations do not provide grounds for reversal unless they
have actually prejudiced the defendant.").
also challenges the admission of that portion of the video
regarding the exchange between Dennis and his mother on the
grounds that the State failed to establish its admissibility
under La. C.E. art. 613. Louisiana Code of Evidence Article
613 provides, in part, that prior inconsistent statements are
"admissible after the proponent has first fairly
directed the witness' attention to the statement, act, or
matter alleged, and the witness has been given the
opportunity to admit the fact and has failed distinctly to do
so." The proper foundation for the admission of an
inconsistent statement "=requires that the time, place
and circumstances in which the statement was made be called
to the witness's attention and that the witness be given
an opportunity to admit or deny having made the prior
statement.'" State v. Pollard, 14-0445, p.
16 (La.App. 4 Cir. 4/15/15), 165 So.3d 289, 301 (quoting
State v. Laymon, 97-1520 (La.App. 4 Cir. 3/15/00),
756 So.2d 1160, 1178). "The witness's denial of
making the prior statement completes the foundation."
Id. An evidentiary ruling relating to the admission
or exclusion of evidence is reviewed under an
abuse-of-discretion standard. State v. Hampton,
15-1222, p. 7 (La.App. 4 Cir. 12/23/15), 183 So.3d 769, 774
the record evidence supports that the State complied with
Article 613. When the State asked Dennis whether he recalled
what he told his mother, after Detective Matthews left the
interrogation room, Dennis indicated he did not. The State
asked if he wanted to refresh his recollection and Dennis
stated, "Yes." Following, the defense lodged an
objection. The defense urged that the portion of the video
referenced by the State should not be shown to the jury to
refresh Dennis' recollection. It appears from the record
that only the audio was played for the jury. After Dennis
reviewed the exchange between himself and his mother, he
expressed it did not refresh his memory. The State moved to
have the video admitted into evidence and published to the
jury. The defense objected and urged only the exchange
between Dennis and his mother should be played. The district
court agreed and only that portion of the video was played at
that time. We find the district court did not abuse its
discretion in admitting that portion of the video.
urges even if the video was properly admitted, La. C.E. art.
801(D)(1)(a) requires "=additional evidence to
corroborate the matter asserted by the prior inconsistent
statement, '" and the State made "no such
showing." As discussed supra, sufficient
evidence was presented to corroborate Dennis' statement
that Dajuan killed James.
this assignment of error lacks merit.
OF ERROR NO. 8: IMPROPER COMMENTS BY THE STATE
defendant complains that during voir dire and in
rebuttal to closing arguments, the State improperly commented
on his Fifth Amendment right to remain silent.
during voir dire regarding right to remain silent
first complained-of commentary by Dajuan, the State stated
during voir dire:
Let's say [my co-defendant] swung the bat. We're both
equally - - we both took swings with the bat. Do you think
that makes any difference and I'm willing to testify now.
No. Why not? You know why. Everybody in this room probably
defense objected to the exchange noting that "[n]o
person accused of a crime has to talk. . . ." The
district court noted the objection; no motion for mistrial
was urged. Following the objection, the State acknowledged a