FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 6566-16 HONORABLE GUY ERNEST BRADBERRY,
Constance Hanes Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: David Billy Parker, Jr.
F. DeRosier 14th JDC District Attorney Karen C. McLellan
Assistant District Attorney Elizabeth B. Hollins Assistant
District Attorney, COUNSEL FOR APPELLEE: State of Louisiana.
composed of D. Kent Savoie, Candyce G. Perret, and Jonathan
W. Perry, Judges.
CANDYCE G. PERRET JUDGE.
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.
AND PROCEDURAL HISTORY:
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
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Parker, 18-64 (La.App. 3 Cir. 1/26/18) (unpublished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. Id.
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,
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.
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.
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.
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.
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.
OF ERROR NUMBER ONE:
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[.]"
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
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.
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.
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.
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.
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.
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
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.
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 ...