Appealed from the Fourth Judicial District Court for the
Parish of Ouachita, Louisiana Trial Court No. 16-F2316
Honorable C. Wendell Manning, Judge
LOUISIANA APPELLATE PROJECT, By: Mary Constance Hanes,
Counsel for Appellant
S. TEW, District Attorney, MICHELLE ANDERSON THOMPSON,
Assistant District Attorney, Counsel for Appellee.
PITMAN, GARRETT, and McCALLUM, JJ.
defendant, Ollandis Derrell Turner, was convicted by a jury
of armed robbery. He was ordered to serve 60 years at hard
labor, without benefit of parole, probation, or suspension of
sentence. On appeal, Turner seeks to have his conviction
overturned, arguing that the evidence was insufficient to
support his conviction, his trial counsel was ineffective,
and the prosecutor made improper remarks during closing
arguments. For the following reasons, we affirm the
conviction and sentence.
August 12, 2016, shortly before 11:00 p.m., Blanton Burgess,
a college student working part-time as a pizza delivery
driver for Domino's Pizza, was delivering six pizzas to a
room at the Motel 6 in Monroe, Louisiana. There was no answer
when he knocked on the door. He called the telephone number
from which the order had been placed. A man answered and said
he was in the motel lobby, but would come to the room.
Burgess was approached by an African-American man. Burgess
saw the man reach behind him and thought he was retrieving
his wallet to pay for the pizzas. Instead, the man produced a
revolver and took the pizzas, Burgess's cell phone, and
$15.00 in cash. Burgess went back to Domino's and police
serial number of the cell phone was furnished to police. The
next day, August 13, 2016, Turner sold the cell phone at an
ecoATM kiosk at a Walmart store in Monroe. He was
photographed and furnished his Louisiana photo identification
card during the transaction. Using the serial number, the
police recovered the phone and the sale was linked to Turner.
was shown a photo lineup and picked Turner's picture as
the individual who robbed him.
was arrested and charged with one count of armed
robbery.He was tried by a jury and convicted as
charged on June 15, 2017. Turner was sentenced to serve 60
years at hard labor without benefit of parole, probation, or
suspension of sentence. He was also ordered to pay
restitution to Domino's in the amount of $58.21. No
motions for new trial, post verdict judgment of acquittal, or
appeal were filed. Turner filed a pro se application
for post conviction relief ("PCR"), seeking an
out-of-time appeal, which was granted by the trial court on
May 31, 2018. Counsel was appointed to represent Turner on
appeal. Turner also filed his own pro se brief on
OF THE EVIDENCE
appeal, Turner's appellate counsel argues that there is
insufficient evidence to support his conviction for armed
robbery because the prosecution failed to negate any
reasonable probability of misidentification. This argument is
standard of appellate review for a sufficiency of the
evidence claim is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Tate, 2001-1658 (La. 5/20/03), 851
So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct.
1604, 158 L.Ed.2d 248 (2004); State v. Robinson, 50,
643 (La.App. 2 Cir. 6/22/16), 197 So.3d 717, writ
denied, 2016-1479 (La. 5/19/17), 221 So.3d 78. 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, 2005-0477 (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,
2009-0310 (La. 11/6/09), 21 So.3d 297; State v.
Robinson, supra. The appellate court does not
assess the credibility of witnesses or reweigh evidence.
State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d
Jackson standard is applicable in cases involving
both direct and circumstantial evidence. State v.
Robinson, supra. Direct evidence provides proof
of the existence of a fact, for example, a witness's
testimony that he saw or heard something. State v.
Wooten, 51, 738 (La.App. 2 Cir. 2/13/18), 244 So.3d
1216. An appellate court reviewing the sufficiency of
evidence in such cases must resolve any conflict in the
direct evidence by viewing that evidence in the light most
favorable to the prosecution. When the direct evidence is
thus viewed, the facts established by the direct evidence and
inferred from the circumstances established by that evidence
must be sufficient for a rational trier of fact to conclude
beyond a reasonable doubt that the defendant was guilty of
every essential element of the crime. State v.
Sutton, 436 So.2d 471 (La. 1983); State v.
evidence is defined as evidence of facts or circumstances
from which one might infer or conclude the existence of other
connected facts. Circumstantial evidence consists 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. Walker, 51, 217 (La.App.
2 Cir. 5/17/17), 221 So.3d 951, writ denied,
2017-1101 (La. 6/1/18), 243 So.3d 1064.
there is conflicting testimony about factual matters, the
resolution of which depends upon a determination of the
credibility of the witnesses, the matter is one of the weight
of the evidence, not its sufficiency. State v.
Robinson, supra; State v. Allen, 36,
180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs
denied, 2002-2595 (La. 3/28/03), 840 So.2d 566,
2002-2997 (La. 6/27/03), 847 So.2d 1255, cert.
denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90
(2004). A reviewing court accords great deference to
the factfinder's decision to accept or reject the
testimony of a witness in whole or in part. State v.
Robinson, supra; State v. Sims, 49,
682 (La.App. 2 Cir. 2/27/15), 162 So.3d 595, writ
denied, 2015-0602 (La. 2/5/16), 186 So.3d 1161. In the
absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness's testimony, if
believed by the trier of fact, is sufficient support for a
requisite factual conclusion. State v. Robinson,
supra; State v. Gullette, 43, 032 (La.App.
2 Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,
480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ
denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.
La. R.S. 14:64 provides:
A. Armed 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, by use of force or
intimidation, while armed with a dangerous weapon.
convict a defendant of armed robbery, the state is required
to prove: (1) a taking (2) of anything of value (3) from the
person or in the immediate control of another (4) by the use
or force of intimidation (5) while armed with a dangerous
weapon. State v. Robinson, supra; State
v. Nealon, 50, 089 (La.App. 2 Cir. 9/30/15), 179 So.3d
661, writ denied, 2015-1964 (La. 10/28/16), 208
So.3d 375; State v. Jackson, 50, 400 (La.App. 2 Cir.
2/24/16), 189 So.3d 1150.
the key issue is the defendant's identity as the
perpetrator, rather than whether the crime was committed, the
state is required to negate any reasonable probability of
misidentification. Positive identification by only one
witness is sufficient to support a conviction. It is the
factfinder who weighs the respective credibility of the
witnesses, and this court will generally not second-guess
those determinations. State v. Hughes, 2005-0992
(La. 11/29/06), 943 So.2d 1047; State v. Robinson,
supra; State v. Clark, 50, 137 (La.App. 2
Cir. 9/30/15), 181 So.3d 150, writ denied, 2015-2049
(La. 11/29/16), 211 So.3d 386. See also State v.
seeking to suppress an identification, the defendant must
prove the procedure used was suggestive and that the totality
of the circumstances presented a substantial likelihood of
misidentification. La.C.Cr.P. art. 703(D); State v.
Martin, 595 So.2d 592 (La. 1992); State v.
Stokes, 36, 212 (La.App. 2 Cir. 9/18/02), 828 So.2d 631,
writ denied, 2002-2807 (La. 9/5/03), 852 So.2d 1023;
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
Louisiana Supreme Court has held that, 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. Williams, 375 So.2d 364 (La. 1979); State v.
Davis, supra; State v. Doucette,
2017-0501 (La.App. 4 Cir. 5/23/18), 243 So.3d 704. 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, 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 (La.App. 4 Cir. 1/31/96), 669
So.2d 517, writ denied, 96-0388 (La. 9/13/96), 679
So.2d 102. If a suggestive identification procedure has been
proved, a reviewing court must look to several factors to
determine, from the totality of the circumstances, whether
the suggestive identification presents a substantial
likelihood of misidentification at trial. State v.
Martin, supra; State v. Doucette,
U.S. Supreme Court has approved several factors for
evaluating whether the reliability of an identification may
outweigh the suggestiveness of the procedures employed.
See Manson v. Brathwaite, supra; Neil
v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401
(1972). The factors are: (1) the opportunity of the witness
to view the criminal at the time of the crime, (2) the
witness's degree of attention, (3) the accuracy of the
victim's prior description of the criminal, (4) the level
of certainty demonstrated at the confrontation, and (5) the
time between the crime and the confrontation. See State
v. Martin, supra.
identification process is suggestive if it unduly focuses a
witness's attention on the suspect. State v.
Hopkins, 39, 258 (La.App. 2 Cir. 3/2/05), 897 So.2d 854,
writ denied, 2005-1238 (La. 12/16/05), 917 So.2d
1107. For example, distinguishing marks on the photos may
single out the accused, or suggestiveness can arise if
sufficient resemblance of physical characteristics and
features does not reasonably test identification. Stat ...