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State v. Turner

Court of Appeals of Louisiana, Second Circuit

April 10, 2019


          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

          ROBERT S. TEW, District Attorney, MICHELLE ANDERSON THOMPSON, Assistant District Attorney, Counsel for Appellee.

          Before PITMAN, GARRETT, and McCALLUM, JJ.

          GARRETT, J.

         The 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.


         On 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 were called.

         The 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.

         Burgess was shown a photo lineup and picked Turner's picture as the individual who robbed him.

         Turner was arrested and charged with one count of armed robbery.[1]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 appeal.


         On 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 without merit.

         Legal Principles

         The 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 442.

         The 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. Robinson, supra.

         Circumstantial 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.

         Where 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.

         To 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.

         When 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. Jackson, supra.

         In 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 So.2d 12.

         The 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, supra.

         The 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.

         An 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 ...

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