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State v. Alridge

Court of Appeals of Louisiana, Fourth Circuit

May 23, 2018

STATE OF LOUISIANA
v.
DAJUAN A. ALRIDGE

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 495-802, SECTION "G" Honorable Byron C. Williams, Judge.

          Leon 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 OF LOUISIANA

          Christopher J. Murell Erica L. Navalance COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Terri F. Love, Judge Paula A. Brown, Judge Dennis R. Bagneris, Pro Tempore [1]

          Paula A. Brown, Judge.

         This is 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.

         PROCEDURAL HISTORY

         On 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").[2] 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.[3] This appeal followed.

         ERRORS PATENT

         Pursuant to La.C.Cr.P. art. 920, a review for errors patent on the face of the record reveals no errors.

         FACTS

         Dennis 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.

         During the three days of trial, the following pertinent testimony was elicited:

         Lashonda Enclade

         Lashonda 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 K.S.[4] 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.

         Ms. 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.

         Also, 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.

         Detective Debra Norman

         Detective 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.

         Dennis Lewis

         On that same day, December 5, 2009, Dennis was taken to the police station where he was interrogated by Detective Orlando Matthews ("Detective Matthews").[5] During the interrogation, Dennis gave several statements to police including a statement implicating Dajuan as the person who stabbed James.

         At 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 victim.

         Since 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.

         Following 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.

         Because Dennis continued to deny any involvement by Dajuan, the State played the entire videotaped statements given by Dennis to police.[6] 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.[7] 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.

         After 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 victim.

         John Duzac

         Former 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.

         Mr. 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 sock.

         Mr. Duzac identified photographs of the scene. Many of the photographs depicted bloody footprints taken at the scene.[8] 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."[9]K.S.

         K.S., James' brother, was eleven years old and in the sixth grade at the time of trial.[10] 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.

         Daniel Dooley

         Daniel Dooley ("Mr. Dooley"), a forensic interviewer at the Center, testified he interviewed K.S. on December 14, 2009.[11] Mr. Dooley testified that K.S. identified, and circled in crayon, one picture from each photographic lineup.

         Dr. Samantha Huber

         Dr. 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 stabbed.

         Dajuan's jailhouse calls

         The 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 behalf.

         DISCUSSION

         Dajuan assigns fourteen errors. These assignments of error have been addressed out-of-order and some, that are interrelated, were combined.

         ASSIGNMENT OF ERROR NO. 2: INSUFFICIENT EVIDENCE

         Dajuan 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).

         "When 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 follows:

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, [20]00-0674 (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La. 1984)).

         "[W]hen 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).

         Additionally, "[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).

         In the 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.[12] 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.

         Dajuan 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).

         Dajuan contends Dennis alone committed the crime. Dajuan argues that "there is no credible forensic evidence and no competent witnesses" proving he committed the murder.

         Alleged inconsistent testimony and statements

         Dajuan 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.

         In 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 at 872-73.

         In the case sub judice, the jury accepted Dennis' statement implicating Dajuan and rejected Dennis' recantation.

         Corroborating evidence

         Dajuan further contends the jury's determination was not supported by the evidence. Dajuan asserts: (1) K.S.'s testimony as unreliable;[13] (2) the footprint evidence was unreliable;[14] (3) Dr. Huber's testimony was "ambiguous" and did not implicate him; and (4) the other witnesses' testimony exclusively linked Dennis to the crime.[15] We disagree.

         K.S.'s 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.

         Applying 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.

         ASSIGNMENT OF ERROR NO. 3: INCOMPETENCE OF DENNIS

         Dajuan 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).

         In 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.[16] 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 trial:

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).

         We find 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.

         Louisiana 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.

         Dennis 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.

         After 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.

         ASSIGNMENT OF ERROR NO. 10: SUGGESTIVE IDENTIFICATION

         Dajuan 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 jumpsuits.[17]

         A 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).

         A "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 lips. Id.

         In the 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.

         Even 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 photographic lineup:

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 929 (La.1981).

         Applying 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.

         This assignment of error lacks merit.

         ASSIGNMENTS OF ERROR NOS. 11 AND 12: VIDEOTAPED STATEMENT

         Dajuan 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

         During 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.

         The 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.

         Even 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.").

         Admissibility of video

         Dajuan 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 (citations omitted).

         We find 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.

         Dajuan 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.

         We find this assignment of error lacks merit.

         ASSIGNMENT OF ERROR NO. 8: IMPROPER COMMENTS BY THE STATE

         The defendant complains that during voir dire and in rebuttal to closing arguments, the State improperly commented on his Fifth Amendment right to remain silent.

         Comment during voir dire regarding right to remain silent

         In the first complained-of commentary by Dajuan, the State stated during voir dire:

[The State]:


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 knows why.

         The 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 ...


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