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State v. Parker

Court of Appeals of Louisiana, Third Circuit

May 1, 2019

STATE OF LOUISIANA
v.
DAVID BILLY PARKER, JR.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 6566-16 HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE.

          Mary Constance Hanes Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: David Billy Parker, Jr.

          John F. DeRosier 14th JDC District Attorney Karen C. McLellan Assistant District Attorney Elizabeth B. Hollins Assistant District Attorney, COUNSEL FOR APPELLEE: State of Louisiana.

          Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.

          CANDYCE G. PERRET JUDGE.

         In this criminal appeal, David Billy Parker, Jr., ("Defendant") appeals his convictions of armed robbery and of false imprisonment with a dangerous weapon. For the following reasons, we hereby affirm Defendant's convictions. We vacate Defendant's sentence for false imprisonment with a dangerous weapon, and we remand the case for resentencing with the trial court being instructed to specify whether the sentence for false imprisonment with a dangerous weapon is to be served with or without hard labor. Defendant's sentence for armed robbery is affirmed as amended to reflect that it is to be served at hard labor, and it is affirmed as amended. Additionally, the trial court is directed to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

         FACTS AND PROCEDURAL HISTORY:

         On September 5, 2014, Defendant held his victim captive at gunpoint during an armed robbery of Advance America. On February 23, 2016, Defendant was charged with armed robbery with a firearm, a violation of La.R.S. 14:64.3; armed robbery, a violation of La.R.S. 14:64; and false imprisonment with a dangerous weapon, a violation of La.R.S. 14:46.1. The State amended the bill on October 19, 2017, to merge the count of armed robbery with the count of armed robbery with a firearm.

         Trial began on January 23, 2018. Defendant moved for a mistrial on January 24, 2018, based on the testimony of witnesses Belinda Richard and Diana Brown. The trial court denied the motion at the conclusion of the hearing and denied Defendant's request to stay the proceedings pending a writ application to this court. This court denied Defendant's writ application on the showing made because it "[did] not contain all of the testimony and evidence that is or could be pertinent to the motion for mistrial[.]" State v. Parker, 18-64 (La.App. 3 Cir. 1/26/18) (unpublished opinion). This court also noted Defendant had an adequate remedy on appeal.[1] Id.

         The jury found Defendant guilty of armed robbery and of false imprisonment with a dangerous weapon. Defendant filed motions for new trial and for a post-verdict judgment of acquittal on March 13, 2018; the motion for new trial included an argument for mistrial. The trial court denied the motions on March 14, 2018.

         The trial court sentenced Defendant to seventy-five years without benefit of parole, probation, or suspension of sentence for armed robbery and to ten years for false imprisonment with a dangerous weapon. The trial court ordered the sentences to run consecutively to each other and consecutively to prior sentences in another case for a total of 140 years in jail, with credit for time served.

         ERRORS PATENT:

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are three errors patent.

         First, the court minutes of sentencing indicate Defendant was sentenced to ten years in the Louisiana Department of Corrections on the false imprisonment conviction; however, the sentencing transcript does not indicate this. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Because the sentencing transcript indicates the trial judge did not designate whether this sentence was imposed with or without hard labor, we find the sentence is indeterminate. Accordingly, we vacate Defendant's sentence for false imprisonment with a dangerous weapon and the case is remanded for resentencing with the trial court being instructed to specify whether the sentence is to be served with or without hard labor. State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La. 12/14/07), 970 So.2d 531.

         Next, a hard labor sentence was required for Defendant's conviction of armed robbery. La.R.S. 14:64. As above, the court minutes indicate this sentence is to be served in the Louisiana Department of Corrections, but the transcript does not so indicate. The failure to impose the sentence at hard labor rendered it illegally lenient. State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166. Thus, pursuant to La.Code Crim.P. art. 882, we amend the sentence to reflect that it is to be served at hard labor. See State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09), 7 So.3d 1193.

         Finally, the trial court failed to properly advise Defendant of the prescriptive period for filing an application for post-conviction relief. The trial court informed Defendant that he had two years from "today" (sentencing) to file an application. Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek post-conviction relief. Accordingly, we hereby direct the trial court to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

         ASSIGNMENT OF ERROR NUMBER ONE:

         Defendant contends the trial court abused its discretion in denying his motion for mistrial after cross-examination revealed the District Attorney's Office conducted a photo lineup with two eyewitnesses on the morning before they testified at trial, and the prosecutor failed to disclose the matter or correct the matter during a bench conference. He argues the State's misrepresentation "effectively deprived [him] of the opportunity to prepare a defense to the identification evidence by employing a different trial strategy, or at the very least, attacking the identification at a pre-trial motion to suppress." Defendant contends he "was unwittingly lead [sic] into bolstering the State's case by revealing the fact of a prior identification to the jury," which did him "considerable prejudicial harm[.]"

         "[A] mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial . . . ." La.Code Crim.P. art. 775.

Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith, 433 So.2d 688 (La.1983). Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Brown, 96-1002 (La.App. 5 Cir. 4/9/97), 694 So.2d 435, 439, writ denied, 97-1251 (La.10/31/97), 703 So.2d 19.

State v. Campbell, 13-130, p. 8 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137, 1141. Even when a mistrial is warranted, "the failure to grant a mistrial would not result in an automatic reversal of defendant's conviction, but would be a trial error subject to the harmless error analysis on appeal. Trial error is harmless where the verdict rendered is 'surely unattributable to the error.'" Id. at 1142 (citations omitted).

         Defendant, both on appeal and in his post-trial motions, relies on State v. Wallace, 285 So.2d 796 (La.1973). In Wallace, our supreme court reversed the trial court and ordered a mistrial where the victim identified the defendants at trial after viewing photographic lineups a few days prior to trial. The three defendants robbed the victim, who immediately reported the crime to police at a nearby café. Police stopped a car fitting the victim's description and returned to the café with the vehicle, the three men riding in it, and a pistol found in the vehicle. Although the victim identified the pistol, he had no opportunity to identify the three men. He was never asked to view a lineup.

         On the Friday before the Monday trial, the victim was shown two cards, each of which contained five photographs. The victim identified two of the defendants. At the trial on Monday, the State's counsel asked the victim if he could identify the three men who robbed him; the victim pointed out the three defendants sitting at the table in the front of the courtroom with their counsel. The victim testified he was "not quite positive" about his identification of the alleged driver, and he said a street light was the only illumination at the crime scene. Id. at 797.

         The supreme court dismissed the State's argument that the photo lineup identification was simply part of its pretrial preparation. Police officers had shielded the victim from the defendants at the time of their arrest. The State waited five months, until three days prior to trial, to present the photo lineup. No photographic identification had been requested from the victim on the two prior occasions when the case came up for trial. While two of the defendants had been within feet of the victim during protracted conversations with him and another witness on both of the prior trial dates, the victim testified he never recognized any of the defendants on either occasion. Nevertheless, three days after the victim's photo identification, he recognized one defendant in the hallway and another one in the courtroom. The court put great weight on the fact that the victim said he was told the defendants' photos were among those he viewed, heightening the chance of misidentification, even though the victim recanted that testimony during the State's re-direct examination. Thus, the court opined the photo identification was tainted to the extent it violated the defendants' due process rights.

         The court next determined the victim's identification was not supported by sources other than the photo identification. It found nothing in the circumstances reported by the victim to substantiate his identification. Although the victim was able to identify the defendants Nicholas and Wallace, who he had identified at the photo lineup, at trial, he could not identify the defendant Baker until he saw him sitting at the defense table at trial. The court concluded the photo lineup identification of Nicholas and Wallace possibly tainted the in-court identification of all three defendants. Thus, the court vacated the defendants' convictions and sentences and remanded the case to the trial court.

         The supreme court distinguished Wallace, 285 So.2d 796, in State v. Williams, 375 So.2d 364 (La.1979). The Williams defendant contended the trial court erred when it denied his motion to suppress the victim's in-court identification as "tainted by an abortive attempted pretrial identification of the defendant." Id. at 369.

         The victim could not identify the defendant when, prior to trial, she was shown a group of photographs, which included the defendant's picture. However, she positively identified him at trial. The defendant had the opportunity to question the victim about the photo lineup. She testified the photographs she saw did not really look like the defendant, and she could not remember until she saw him in person at the trial.

         The supreme court distinguished Wallace, 285 So.2d 796, because the victim there was told the defendants' pictures were included in the photo lineups. Further, the Wallace in-court identification was based on the photo lineup, but in Williams, 375 So.2d 364, the victim could not identify the defendant from his photo.

         The Williams court commented, "Even if suggestive identification procedures are proven by the defense, it is the likelihood of misidentification, and not the mere existence of suggestiveness, which violates due process." Id. at 369. The court noted the five-factor test of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977), which balances "the corrupting effect of a suggestive identification." Williams, 375 So.2d at 369. Those five factors are:

the witness' opportunity to view the crime; the degree of attention paid by the witness; the accuracy of any prior description; the level of certainty displayed at the confrontation; and the amount of ...

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