Opinion
NO. 2014 KA 0221
09-19-2014
STATE OF LOUISIANA v. TARA HUNTER
Scott M. Perrilloux District Attorney Patricia Amos Assistant District Attorney Amite, LA Attorneys for Plaintiff-Appellee, State of Louisiana Prentice L. White Baton Rouge, LA Attorney for Defendant-Appellant, Tara Hunter
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21st Judicial District Court, In and for the Parish of Livingston, State of Louisiana
Trial Court No. 20698
Honorable Douglas Hughes, Judge Presiding Scott M. Perrilloux
District Attorney
Patricia Amos
Assistant District Attorney
Amite, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Prentice L. White
Baton Rouge, LA
Attorney for Defendant-Appellant,
Tara Hunter
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ
HIGGINBOTHAM, J.
The defendant, Tara Hunter, was charged by grand jury indictment with two counts of armed robbery, violations of La. R.S. 14:64. The defendant pled not guilty and, after a trial by jury, was found not guilty on count one and guilty as charged on count two. The trial court denied the defendant's motion for new trial and motion for postverdict judgment of acquittal. The trial court sentenced the defendant to twenty years imprisonment at hard labor. The defendant now appeals, challenging the denial of her motion to sever and the admissibility of the photographic lineup. For the following reasons, we affirm the conviction and sentence.
The defendant was charged and tried along with codefendant Kendrick Mattire who also previously appealed to this Court. The codefendant was charged with the two armed robberies charged against the defendant herein, along with two additional offenses wherein the defendant in this case was not charged, including a third armed robbery and carjacking. The codefendant was found guilty as charged on all four counts. State v. Mattire, 2011-2390 (La. App. 1 Cir. 9/21/12), (unpublished decision), writ denied, 2012-2620 (La. 5/17/13), 117 So.3d 509.
The defense counsel adopted codefendant's motions which were denied. The defense counsel subsequently filed repetitive written motions on behalf of the defendant after sentencing, but did not appear on dates set for repeat motions filed after sentencing.
STATEMENT OF FACTS
The defendant was acquitted of the armed robbery charge stemming from a March 10, 2006 incident wherein the victim, Shanna Hamilton, was robbed at gunpoint that afternoon while working at a Kean's dry cleaning store in the Broadway Place Shopping Center in Denham Springs, Louisiana. As the defendant notes in her appeal brief, several witnesses observed her with codefendant at the shopping center though Hamilton indicated that the defendant did not approach her when the codefendant put the gun to her face and demanded money. Since the defendant was acquitted as to that offense, the statement of facts relates to the incident which formed the basis of count two, of which the defendant was found guilty as charged.
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On March 29, 2006, near 2:00 p.m., Patricia Baker (the victim) returned to her residence in Albany, Louisiana, following a shopping trip to Baton Rouge. The victim went into the backyard to check on her dog and was returning to her car in the driveway when she noticed a gray, four-door vehicle had parked there. She walked up to the vehicle, which had two people in it, and asked if she could help. The driver was a slim black male with gold teeth wearing a white shirt. The victim initially thought that the passenger was another man. During the trial the victim described the passenger as a woman wearing a white, long-sleeved men's shirt with a button-up collar, with her hair slicked back, The couple asked the victim for directions to New Orleans, and they engaged in conversation for about ten to fifteen minutes, during which time the victim was standing about three to four feet from the vehicle. The victim told them she had to go take care of her other dog but, as she turned around and bent down to get the dog's chain, the driver exited the vehicle, came up behind her, and ordered her to give him her keys. A struggle ensued for the keys and her purse, which was on her shoulder. The man became increasingly violent, and as he tried to put a gun into the victim's mouth, he cut her lip and chipped her tooth. When he cocked the gun, the other person in the car, who the victim noticed had moved to the driver's seat, screamed at him and said to just take the purse and "let's get out of here." The man tugged on the purse, dragging the victim as she held on to the purse strap. Eventually, the strap on the purse broke, the man took it, and then he and the other individual drove off in the gray car.
The victim called 911 and the police arrived, at which time she gave a statement describing the perpetrators as two black males, one heavyset and the other tall and slim with gold teeth. The next day, on March 30, the victim identified the codefendant in a photographic lineup. The following day, March 31, she also identified the defendant from a photograph lineup. At the trial, she noted that the defendant's clothing and hair style caused her to initially think that the defendant was a male.
Shortly after Baker was robbed, Alton Elms, who was working at Range Car Wash in Denham Springs, noticed a purse lying on top of a full garbage can. There were police in the area, so he gave the purse to an officer and showed him where he had found it. At trial, the purse, which had only one strap, was identified as the one taken from Baker.
ASSIGNMENT OF ERROR NUMBER ONE
In her first assignment of error, the defendant contends that the trial court erred in denying her motion to sever. The defendant notes that the motion was based on the argument that joint prosecution would give the jury the impression that convicting both she and Mattire was appropriate since they were being tried together and because it was obvious from the testimony that codefendant, Mattire was involved in all three robberies, as well as a carjacking. Likewise, the defendant argues on appeal that she was aggrieved by the trial court's denial of the motion to sever because the jury inferred that she was guilty based on her association with codefendant. The defendant notes that all of the witnesses were certain as to the codefendant's identity as a perpetrator regarding three armed robberies and a carjacking. The defendant further notes that she was observed walking with codefendant at a shopping center in Livingston Parish and was with the codefendant at the time of his arrest. The defendant contends that the ends of justice would be served by reversing the trial court's ruling on the motion to sever and remanding for a new trial.
Defendants who are jointly indicted are to be tried together unless the court finds that justice requires a severance. La. Code Crim. P. art. 704. The courts have permitted a severance to codefendants whose defenses are antagonistic to each other. Defenses are antagonistic when each defendant intends to exculpate himself by putting the blame for the offense on a codefendant. However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be present to justify a severance. An accused is not entitled to a severance as a matter of right; the decision is one resting within the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Reversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. State v. Price, 93-0625, 93-0626 (La. App. 1 Cir. 3/11/94), 636 So.2d 933, 936-37, writs denied, 94-0742 (La. 6/17/94), 638 So.2d 1091 & 94-1566 (La. 10/14/94), 643 So.2d 159.
After reviewing the record, we are unable to find convincing evidence of antagonistic defenses. The defendant's defense was not antagonistic to codefendant Mattire's defense. The defendants relied on a defense of mistaken identity and/or extent of participation; not that one was mistaken for the other. See State v. Dilosa, 2001-0024 (La. App. 1 Cir. 5/9/03), 849 So.2d 657, 669-70, writ denied, 2003-1601 (La. 12/12/03), 860 So.2d 1153 (extent of participation of each defendant in the transaction is not grounds for granting a severance). Further, the jury was apparently able to separate the issues as the defendant was found not guilty on count one though the codefendant was found guilty as charged on all counts. Therefore, the defendant has failed to make a showing of prejudice. Assignment of error, number one is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In her second assignment of error, the defendant argues that the trial court erred in admitting the photographic identification by Baker. The defendant notes that although the victim had indicated that both perpetrators were males, she was subsequently shown a lineup featuring females. The defendant further notes that the decision to use the female lineup was based on the fact that she was seen with the codefendant at the time of the March 10 armed robbery, and was present at the time of the codefendant's arrest. The defendant contends that her photograph was highlighted due to the contrast of her skin tone and clothing in comparison to the other females included in the photographic lineup. Thus, the defendant argues that a suggestive photographic lineup was used in this case.
An identification procedure is suggestive if it unduly focuses a witness's attention on the suspect. State v. Neslo, 433 So.2d 73, 78 (La. 1983); State v. Robinson, 386 So.2d 1374, 1377 (La. 1980). In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court allowed evidence of a suggestive pretrial identification from a single photograph by an undercover police agent after determining that it was reliable. In that decision, the court concluded that "reliability is the linchpin in determining the admissibility of identification testimony[.]" Reliability is to be determined by the totality of the circumstances. Brathwaite, 432 U.S. at 113-114, 97 S.Ct. at 2252-2253.
Thus, a defendant attempting to suppress an identification must prove the identification was suggestive and that there was a substantial likelihood of misidentification by the eyewitness. Even should the identification be considered suggestive, that alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure.' State v. Reed, 97-0812 (La. App. 1 Cir. 4/8/98), 712 So.2d 572, 576, writ denied, 98-1266 (La. 11/25/98), 729 So.2d 572.
If the identification procedure is determined to be suggestive, courts look to several factors to determine, from the totality of the circumstances, if the suggestive identification presents a substantial likelihood of misidentification. These factors include: (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 his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. State v. Martin, 595 So.2d 592, 595 (La. 1992) (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)). Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Martin, 595 So.2d at 595. A trial court's determination of 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. Reed, 712 So.2d at 576.
When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
At the hearing on the motion to suppress the pretrial identifications in this case, regarding the procedure used for the identification of the defendant by Baker, Detective Woody Overton of the Livingston Parish Sheriff's Office testified that March 10 surveillance footage of the shopping center where the Hamilton robbery occurred showed a male and female walking behind the shopping center and after speaking to several witnesses, the defendants were developed as suspects. Specifically regarding the lineups showed to Baker, Detective Overton testified that, as a part of his routine, he instructed Baker to avoid guessing and to only make an identification based on one hundred percent certainty. He noted that she immediately identified the codefendant. Regarding the identification of the defendant, Detective Overton testified, "Ms. Baker had said that the short, heavyset male with his hair pulled back that was in the car hollering, 'Get the purse'... I showed the photo lineup of Ms. Hunter. Quickly she said, 'That's him. That's him.' I said, 'Well, this is a female.' She said, 'Well, I don't care. I'm telling you that's him. I must have mistook [sic] him." Detective Overton noted that the victim one hundred percent positively identified the defendant.
The victim also testified at the hearing. The victim noted that she had spoken with the perpetrators for about ten minutes and was able to describe them. She further testified that although the defendant was "posed as a man," noting that her hair was slicked back, she still recognized her face. In addition to selecting the photograph of the defendant in the photographic lineup two days after the offense, the victim wrote the following statement at the time of the lineup: "On 3-29-06 the day of robery [sic] this lady witch [sic] I thought was a man with pulled back hair was the driver of get away car. She was positively identified by myself. Patricia Baker 3-31-06 11:00 [a.m.]" Baker's trial testimony was consistent with her pretrial testimony. Baker specifically testified that she selected the defendant because she recognized the defendant's face.
Based on our review of the photographic lineup used in this case and the testimony presented at the hearing and the trial, we are not convinced that the photographic lineup unduly focused the witness's attention on the defendant. We find that there is no indication that the identification procedure was suggestive in this case and there was no substantial likelihood of misidentification. The witness had an ample opportunity to observe the perpetrators and she positively identified the defendant only two days after the incident. The second assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.