Opinion
No. 2008 KA 2352.
May 8, 2009.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE LOUISIANA TRIAL COURT NUMBER 07-06-0032 HONORABLE RICHARD "CHIP" MOORE, III, JUDGE.
Hillar C. Moore III, District Attorney, Stacy L. Wright, Assistant District Attorney, Dana J. Cummings, Assistant Attorney General, Baton Rouge, LA, Attorneys for State — Appellee.
Margaret S. Sollars, Thibodaux, LA, Attorney for Defendant — Appellant, Joshua Johnson.
BEFORE: PARRO, McCLENDON, AND WELCH, JJ.
The defendant, Joshua Johnson, was charged by grand jury indictment with six counts of armed robbery (counts I, II, III, IV, VII, and VIII), violations of La.R.S. 14:64; two counts of aggravated kidnapping (counts V and IX), violations of La.R.S. 14:44; and one count of aggravated rape (count VI), a violation of La.R.S. 14:42. He pled not guilty on all counts. Following a jury trial, he was found guilty as charged on counts I, II, IV, V, VI, VII, VIII, and IX, and not guilty on count III. On counts I, II, IV, VII, and VIII, he was sentenced to thirty years at hard labor on each count, with the sentences to run consecutively with each other. On counts V, VI, and IX, he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each count. He now appeals, contending the trial court erred in: denying the defense challenges for cause; failing to suppress identifications; and failing to allow the defense to fully present its case. For the following reasons, we affirm the convictions and sentences on counts I, II, IV, V, VI, VII, VIII, and IX.
The indictment also made similar charges against Thedrick Edwards, Eric Walker, Excell Wright, Horace Wells, and Jacquin James. None of these men were tried with the defendant. We note that prior to trial, the count numbers in the original indictment were renumbered.
FACTS
Marc Verret testified that during the early hours of May 15, 2006, as he was exiting his vehicle at his apartment complex on July Street in Baton Rouge, he was confronted by a man wearing a bandanna, who pointed a gun at his face. The man forced Verret to slide over on his seat, and a second assailant, later identified as Thedrick Edwards, entered the car. The men drove Verret to an ATM machine, forced him to withdraw $300, and then drove to a driveway where they exited the vehicle with Verret's money, phone, wallet, and iPod. Verret identified the defendant as the robber and kidnapper on the morning of the offenses and in court.
Grace Wilson testified at trial that on May 13, 2006, she was living in an apartment with R.M. on East Boyd in Baton Rouge. She and her boyfriend, Ryan Eaton, had plans to go out that evening after Eaton finished work at approximately 11:00 p.m. Eaton never picked her up and she went out without him. After Wilson returned home, Eaton knocked at her door. When Wilson answered the knock, Eaton was pushed into the apartment by two men wearing bandannas and armed with guns. The men forced Wilson, Eaton, L.R., and R.M. to lie on the floor. The men took the phones and purses of the women. Thereafter, one of the men, later identified as Thedrick Edwards, raped L.R. The men left with Wilson's laptop, iPod, cell phone, and a gift she had purchased for her mother.
We reference the victims of the sex offenses only by their initials. See La.R.S. 46:1844(W).
L.R. was a high school senior who was visiting Wilson.
R.M. and L.R. testified at trial. R.M. indicated that the defendant raped her at gunpoint and stole a cell phone and approximately $400 belonging to her during the home invasion on May 13, 2006. L.R. indicated that she was raped by Thedrick Edwards during the home invasion and her cell phone was stolen.
Ryan Eaton testified that on May 13, 2006, at approximately 11:15 p.m., he went to Circle K and then went to Wilson's apartment. As he exited his vehicle, he was confronted by a man wearing a bandanna who pointed a gun at his face. The man and a second assailant forced Eaton into his car and drove him to a house in North Baton Rouge, where they searched him and his car. The men then drove Eaton to an ATM and told him to withdraw money from his account. When Eaton did not have any money to withdraw, the men began talking about shooting him in the stomach and leaving him in the woods. Eaton took the men to his apartment, hoping that they might take some of his things and release him. The men took a TV, a DVD player, a camera, a drill, an amplifier, a revolver, and clothes from the apartment. Subsequently, after Wilson called Eaton on his cell phone, the men told him they wanted to "meet up" with her. Wilson was at a bar called Chelsea's, so the men drove Eaton to Chelsea's. One of the men got out at Chelsea's and committed a robbery while the other remained with Eaton in the car. The men then forced Eaton back to Wilson's apartment.
CHALLENGES FOR CAUSE
In assignment of error number 1, the defendant argues the trial court erred in denying the defense challenge for cause against prospective jurors Knight, Broussard, Smith, and Norwood. He argues: Knight knew two of the victims and would have placed the burden of proof on the defendant; Broussard did not understand reasonable doubt; two of Smith's family members had been murdered; and Norwood would have taken the word of a policeman over other witnesses.
Initially, we note the defense failed to challenge Knight on any basis concerning her placement of the burden of proof. The defendant may not assign error to the trial court's refusal to sustain a challenge for cause unless he states the nature of the objection and grounds therefor. See La.C.Cr.P. art. 800(A); State v. Vanderpool, 493 So.2d 574, 575 (La. 1986). An objection need not be raised by incantation under La.C.Cr.P. art. 800(A). It is sufficient that the party raising the objection make known that they want a particular prospective juror excused and voice the reason why. See Vanderpool, 493 So.2d at 575.
The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality, or on the ground that the juror will not accept the law as given to him by the court. La.C.Cr.P. art. 797(2) and 797(4). In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. Prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Taylor, 2003-1834, pp. 5-6 (La. 5/25/04), 875 So.2d 58, 62. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may be inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Henderson, 99-1945, p. 9 (La.App. 1st Cir. 6/23/00), 762 So.2d 747, 754, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.
The rule is now different at the federal level. See United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct.774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).
Erin Michelle Knight was a prospective juror on panel one. In response to questioning from the court, she did not indicate that she would not follow the law as given by the court. She also did not indicate that she would not hold the State to its burden of proof beyond a reasonable doubt. When asked if there was any reason whatsoever she could think of why she could not be fair and impartial, she responded, "[o]ther than I know two people that were on the witness list." She stated that she went to high school with Grace Wilson and L.R., and while not friends with them, she was acquainted with them. She indicated that she was in the same group as Wilson and L.R. four years ago, but had not spoken to them since then.
In response to questioning from the State, Knight indicated she had no knowledge of the events surrounding the charges against the defendant. The State advised Knight that Wilson and L.R. were victims in the case and asked her if, knowing that fact, she could be fair. Knight answered affirmatively. She indicated there was no reason why she could not be fair and impartial. In response to questioning by the defense, Knight indicated she had only attended high school with Wilson and L.R. during her senior year. She stated that although she attended some of the same classes as Wilson, Wilson had a different group of friends.
The defense challenged Knight for cause. It cited the fact that she knew two victims in the case "irrespective of how well she says she knows them." The State objected to the challenge, arguing that Knight, Wilson, and L.R. were just acquaintances, Knight had not spoken with Wilson and L.R. for four years, and "didn't even know when this happened." The court denied the challenge for cause, noting that it had not heard anything indicating that Knight was prejudiced one way or the other. The defense used its first peremptory challenge against Knight before exhausting all of its peremptory challenges.
The trial court did not abuse its broad discretion in denying the challenge for cause against Knight. She demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.
Megan Claire Broussard was a prospective juror on panel one. In response to questioning from the court, she did not indicate that she would not follow the law as given by the court. She also did not indicate that she would not hold the State to its burden of proof beyond a reasonable doubt. She indicated she could not think of any reason why she could not be fair and impartial in the case. She was present when the State explained that it did not have to prove the defendant's guilt to a certainty, but rather beyond a reasonable doubt. The State explained that some jurors had described "beyond a reasonable doubt" as "something that I know in my gut." The State indicated that "beyond a reasonable doubt" meant that the jurors were convinced of each and every element of the offense beyond a point that they could have a rational basis for any doubt.
The defense asked Broussard what reasonable doubt meant to her. She first answered, "[t]hat there's complete belief in something," then indicated that she did not know, and finally stated, "[t]hat there was enough evidence to make the decision that [the juror] [did not] doubt it."
The defense challenged Broussard for cause. It argued she "didn't know what reasonable doubt was." The State replied that the objection "sound[ed] like a peremptory challenge." The court indicated that ignorance was not a ground for a challenge for cause and instructed the State and the defense to proceed. The defense used its seventh peremptory challenge against Broussard before exhausting all of its peremptory challenges.
The trial court did not abuse its broad discretion in denying the challenge for cause against Broussard. She demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. The fact that she was unable to give a perfect definition of reasonable doubt did not establish a basis for her to be challenged for cause.
Robin W. Smith was a prospective juror on panel one. In response to questioning from the trial court, she did not indicate that she would not follow the law as given by the court. She also did not indicate that she would not hold the State to its burden of proof beyond a reasonable doubt. She indicated her son was murdered in 1999 and the murderer was serving a life sentence in Angola. When asked if that event would keep her from being fair and impartial in the case, she stated, "I don't think so. I just don't like being here." She indicated being in the courtroom brought back memories. She also indicated that her father was murdered when she was ten years old, and the person responsible was never apprehended.
In response to questioning from the State, Smith indicated she could sit on the jury and the tragedies in her life would not affect her decision making because "each situation is different."
In response to questioning from the defense, Smith indicated the murders of her son and father would not affect her in the present case because the present case was totally different. She did not think that listening to testimony would cause her to have flashbacks.
While the State and the defense were exercising challenges for cause, the defense stated, "Judge, I really, really thinking about Robin Smith, I mean, that woman, bless her heart." The court noted that Smith had repeatedly stated that she could be fair and impartial, that she could put aside the murders of her son and father, and that she would not let that weigh on her mind in making a decision in this case. Thereafter, the defense used its eleventh peremptory challenge against Smith before exhausting all of its peremptory challenges.
The trial court did not abuse its broad discretion in denying the challenge for cause against Smith. She demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.
Kellie Norwood was a prospective juror on panel two. In response to questioning from the court, she did not indicate that she would have any problem in evaluating the credibility of a law enforcement officer in the same manner as she would evaluate the credibility of any other witness. She also did not indicate that she would not follow the law as given by the court. She indicated she could not think of any reason why she could not be fair and impartial in the case. She indicated she had in-laws who were involved in law enforcement, had grown up with police officers, and knew many police officers. She indicated it would be hard to be fair, she could not guarantee that she would be fair, but she would like to say she would be fair.
Thereafter, the following exchange took place between the State and Norwood:
[State]: You know many, many, many law-enforcement officers.
[Norwood]: Yes, I do. I know a lot.
[State]: Okay. Do you think-I know that you — you expressed a little reservation about —
[Norwood]: I mean, I've heard stories, you know, from police officers and just, you know, — I have to say, I respect and believe most of them, you know, that I've met and known. Now, I do know some police officers — he's no longer a police officer. He was one of the bad ones. But I would hope that I would give, you know, I mean — you know, be fair. That I wouldn't put that knowing, you know, a lot of stories and stuff. I would hope that I would not take that into consideration and just automatically believe a police officer because they're human.
[State]: Absolutely. Do you think you can do that? And, again, we're asking you all of these unfair questions, and I understand that. We're asking you to commit to feelings before you ever get to hear the evidence. I understand that's difficult.
[Norwood]: Right.
[State]: But do you understand that the defense is gonna want an answer here —
[Norwood]: Right.
[State]: — as well as me. They're gonna want to know that you can just judge each witnesses's [sic] credibility on their own.
[Norwood]: Yes, I think I could.
[State]: Okay. So can you put aside the fact that they're a law officer or not and just focus on their credibility?
[Norwood]: Yes, I think I could.
The defense challenged Norwood for cause. It argued she had indicated that she could not guarantee that she would not believe police officers. The State argued that Norwood had been rehabilitated and had indicated she could be fair and could consider the testimony of police officers just like the testimony of any other witness. The court denied the challenge for cause, and the defense used its fourth peremptory challenge against Norwood before exhausting all of its peremptory challenges. The defense objected to the court's ruling.
The trial court did not abuse its broad discretion in denying the challenge for cause against Norwood. She demonstrated a willingness and ability to decide the case impartially according to the law and the evidence and her responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred.
This assignment of error is without merit.
MOTION TO SUPPRESS IDENTIFICATION
In assignment of error number 2, the defendant argues the trial court erred in failing to suppress the photographic lineup identification and in-court identification of him by Marc Verret because the photo lineup was impermissibly suggestive as he was the only person in the lineup with a medium complexion and large lips. Additionally, the defendant argues the identifications of him made by "several of the victims" were "less than reliable" because he was the only person in the photographic lineup with a medium complexion and "several of the victims" saw this picture on television prior to making an in-court identification.
Initially, we note that the argument that the trial court erred in failing to suppress in-court identifications of the defendant based on the witnesses' exposure to the defendant's photograph on television is not properly before this court. The defendant failed to make this argument in his motion to suppress or at the suppression hearing. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action which he desired the court to take, or of his objections to the action of the court, and the grounds therefor. La.C.Cr.P. art. 841; La.C.E. art. 103(A)(1).
A defendant who seeks to suppress an identification must prove two things. Firstly, he must prove that the identification itself was suggestive. Secondly, he must show that there was a likelihood of misidentification as a result of the identification procedure. The factors to be considered in assessing reliability 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 his prior description of the criminal, (4) the witness's level of certainty, and (5) the time between the crime and the confrontation. State v. Caples, 2005-2517, pp. 6-7 (La.App. 1st Cir. 6/9/06), 938 So.2d 147, 152, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684.
An identification procedure is suggestive if it unduly focuses a witness's attention on the suspect. Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Johnson, 2000-0680, p. 7 (La.App. 1st Cir. 12/22/00), 775 So.2d 670, 677, writ denied, 2002-1368 (La. 5/30/03), 845 So.2d 1066.
Prior to trial, the defendant moved to suppress the photographic lineup identification and in-court identification.
Verret was the only victim to testify at the hearing on the motion to suppress. He indicated he was robbed during the early hours of May 15, 2006. As he was getting out of his car at his apartment complex, the robber pointed a gun at his face. The robber was wearing a tan or light brown bandanna over his mouth, socks on his hands, and a black T-shirt. The robber told Verret to slide over to the passenger seat. A second robber then got into the back of Verret's vehicle. The robbers put Verret's hat over his face and laid his seat down. They took him to an ATM and forced him to withdraw money. They then left him on the driveway of a house and drove off in his vehicle. The ordeal lasted approximately thirty minutes to an hour.
Verret identified the robber as having medium-toned skin, squinty eyes, and short hair. After the robbery, the police took Verret to a location where they had three suspects, but not the defendant, who had been apprehended with Verret's iPod. Verret did not identify any of the suspects as either of the robbers. Later on the morning of the robbery, he was shown a photographic lineup, and identified the defendant as the robber in five seconds. Verret had no doubt in his mind that the defendant was the first robber. A few weeks after the robbery, Verret saw the defendant's picture on the news identified as "Lips."
Verret indicated that the parking lot of his apartment complex was brightly lit at the time of the robbery. He stated that he looked at the robber's eyes and forehead for a few minutes before he was forced into his vehicle. Verret stated, "[W]hen you have a gun in your face, it's like a photographic memory right there. You don't know if you're going to die or what." He was absolutely sure that the defendant in court was the first robber.
Baton Rouge City Police Sergeant Tillman Cox also testified at the hearing on the motion to suppress. He constructed the photographic lineup shown to Verret. After the defendant became a suspect, Sergeant Cox used the defendant's height, skin complexion, age, and hair length to obtain similar photographs for the lineup from the Automated Fingerprint Identification System machine.
The defense argued that Verret had seen only a portion of the first robber's face before he was forced into his car, and once inside the car, his vision was obscured by a cap. The defense claimed that the defendant's photograph was the only photograph in the lineup of someone with brown or medium-colored skin and big lips.
The State argued Verret had an opportunity to view the robber's eyes and hairline and that he had indicated that the image of the robber's face had been imprinted on his mind. The State urged that Verret had a heightened degree of attention, accurately described the defendant, and was absolutely certain of his identification of the defendant as the first robber. Additionally, the State argued that the time between the crime and the confrontation was immediate.
The State further asserted that the accuracy of Verret's identification was also bolstered by the fact that he had an opportunity to view three individuals caught with his iPod after the robbery, but did not identify any of them as either of the robbers. It posited that the lineup was not suggestive and there was no requirement that the pictures in the lineup depict people with identical lips. Lastly, the State argued that Verret did not make his identification on the basis of lips because he never viewed the robber's lips. The court denied the motion to suppress, finding that the photographic identification was reliable and the lineup was not overly suggestive.
There was no abuse of discretion in the denial of the motion to suppress. The photographic lineup consisted of photographs of six black males similar in age and appearance. There was sufficient resemblance among the persons depicted to reasonably test identification.
Further, the identification by Verret was reliable. Verret viewed the top of the first robber's face in good lighting with a very high degree of attention. His description of the robber was accurate, he had a very high degree of certainty, and only a few hours passed between the crime and the confrontation.
This assignment of error is without merit.
RIGHT TO PRESENT A DEFENSE
In assignment of error number 3, the defendant argues the trial court failed to allow him to fully present his defense. He cites the following instances: (a) when he objected to the State playing part of Jacquin James's taped statement to Detective Cox; (b) when the court ruled he would not be allowed to show Detective Cox a person and ask whether he could have been the robber; (c) when he objected to R.M.'s statement being played to refresh the memory of Detective Cox; (d) when the court refused to allow him to play James's entire statement; (e) when the court did not allow him to ask James to identify pictures taken from the iPod or digital camera taken from a victim; (f) when the court did not allow him to question Detective Cox about what James had told him about the defendant in his taped statement; and (g) when the court did not allow him to question Detective Fairbanks about R.M.'s taped statement.
Under compelling circumstances, formal rules of evidence must yield to a defendant's constitutional right to confront and cross-examine witnesses and to present a defense. Normally inadmissible hearsay may be admitted if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant's right to present a defense. See U.S. Const. amend. VI ; La.Const. art. I, § 16; Chambers v. Mississippi, 410 U.S.284, 93 S.Ct.1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S.14, 87 S.Ct.1920, 18 L.Ed.2d 1019 (1967); State v. Van Winkle, 94-0947, pp. 5-7 (La. 6/30/95), 658 So.2d 198, 201-202; State v. Gremillion, 542 So.2d 1074 (La. 1989); see also State v. Juniors, 2003-2425, pp. 44-45 (La. 6/29/05), 915 So.2d 291, 325-326, cert. denied, 547 U.S.1115, 126 S.Ct.1940, 164 L.Ed.2d 669 (2006).
During redirect examination, the State asked Jacquin James if, during his interview with the police, he ever told the police who was responsible, or ever disclosed circumstances that indicated who was responsible, for the robberies. James answered negatively. The State moved to refresh James's memory with the taped statement. The defense objected, arguing that the tape contained hearsay and needed to be edited before being allowed into evidence. The court ruled that it would allow the State to introduce the portion of the taped statement that corresponded to the part of James's testimony that was being rehabilitated or impeached. The State and the defense thanked the court for the ruling. Thereafter, the defense argued that it could only have effective recross if allowed to "get more into the tape[.]" The court ruled that the defense would be allowed recross only on the new evidence admitted on redirect, and the defense objected to the court's ruling. Assignment of error 3(a) is without merit. The ruling did not prevent the defendant from confronting and cross-examining James to present his defense. The ruling specifically allowed cross-examination on the new evidence introduced, and the remainder of the statement was excluded due to the defendant's objection.
During cross-examination, the defense asked Sergeant Cox for a physical description of the person he claimed was the defendant on a Circle K surveillance tape and then attempted to introduce a person with similar characteristics into evidence to demonstrate that Sergeant Cox could have been mistaken. The State objected, arguing that the demonstration would be highly prejudicial and irrelevant. The court asked the defense if the person it wished to introduce would confess to committing the crimes at issue, and the defense answered he would not. The court ruled that it would not allow the demonstration, finding that the danger of unfair prejudice and confusion of the issues to the jury outweighed any substantive value of the demonstration to the defense and other mechanisms, such as cross-examination, were available to show how many people in the world fit the description of the defendant. The defense objected to the ruling of the court. Assignment of error 3(b) is without merit. The ruling did not prevent the defendant from confronting and cross-examining Sergeant Cox to present his defense. Indeed, the ruling specifically allowed cross-examination. The demonstration offered by the defense was irrelevant. See State v. Nix, 327 So.2d 301, 345 (La. 1975), cert. denied sub nom., 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976).
During direct examination, the State moved to refresh the recollection of Baton Rouge City Police Detective Greg Fairbanks with the statement he had taken from R.M. The defense objected, arguing it could not cross-examine what was said on the tape. The State moved to play only a portion of R.M.'s statement, and the defense again objected. The State then moved to play a portion of R.M.'s statement for Detective Fairbanks out of the presence of the jury, and the defense stated, "Okay[,]" but still objected. Thereafter, the defense stated, "[W]hy don't we just play the whole tape?" and the court noted that the defense had objected. Following an in-chambers conference, the court stated that the State would ensure that a second copy of R.M.'s taped statement would be provided to the defense in the event that it wished to use that as part of its case-in-chief. The court asked if that satisfied the defense, and the defense answered affirmatively. Assignment of error 3(c) is without merit. The ruling did not prevent the defendant from confronting and cross-examining Detective Fairbanks to present his defense. Detective Fairbanks was available for cross-examination on his refreshed recollection.
The defense called James during the presentation of its case. The defense asked James if he had lied more than five times, but less than ten times on his recorded statement, and James answered affirmatively. Thereafter, in response to defense questioning, James indicated that probably minor parts of his statement were lies. The defense moved to play the entire statement. The State objected, arguing that the defense needed to lay a foundation for playing hearsay in court. The defense indicated that it wanted to play each statement James made on the tape and ask him whether it was the truth or a lie. The court ruled it would allow the defense to question James about what he said on the tape and to play any portion of the tape that was inconsistent with James's answers. Assignment of error 3(d) is without merit. The ruling did not prevent the defendant from confronting and cross-examining James to present his defense. The ruling specifically provided for impeachment of James with inconsistent statements from his taped statement.
The defense also questioned James concerning who appeared in the photographs taken at "Banks" on May 15, 2006. James indicated that he, the defendant, Thedrick Edwards, Eric Walker, Excell Wright, and Horace Wells were present at Banks, but he did not pay attention to "who was on the photographs" because he was busy with a phone call and stayed away from the others so that they would not be able to hear his conversation. James indicated that he did not exactly remember who was taking pictures. The defense asked, if it told James that at Edwards's trial, he had stated Walker and Wright were taking pictures, would that be correct? James replied, "That can be correct. I don't remember who — exactly who it was." After further questioning, the defense moved to present the photographs to the jury. The State objected, arguing that in order to lay a foundation for the introduction of photographs, someone present at the time the photographs were taken who could testify that they accurately depicted the scene as they saw it, or the photographer, needed to be presented, and the defense had presented neither person. The court asked the defense what purpose would be served by the introduction of the photographs, and the defense replied, "[t]he purpose of this is that [the defendant] is no where [sic] around. He has nothing to do with it. He has nothing to do with guns or money. These are the individuals that pulled whatever robberies, whatever rapes, whatever kidnappings were done on May 14th and 15th of 2006." The court ruled that no foundation had been laid for the introduction of the photographs, the introduction of the photographs would serve no useful purpose, and that the photographs were not offered for impeachment purposes; therefore, it would not allow the photographs to be introduced on direct or redirect examination of James. The court further ruled that the defense could reoffer the photographs if it had another witness who could lay a foundation and it believed the photographs were relevant to its case. The defense objected to the court's ruling. Assignment of error 3(e) is without merit. The ruling did not prevent the defendant from confronting and cross-examining James or any other witness to present his defense and the absence of the defendant in the photographs did not establish that the defendant was not involved with the crimes at issue.
The defense also called Sergeant Cox during the presentation of its case. The defense asked Sergeant Cox if he remembered James telling him what James thought about the defendant. The State objected, arguing that the defense was asking for hearsay. The defense argued that the testimony was admissible as part of the res gestae or as a declaration against James's interest as a principal to the robbery. The court overruled the objection, and the State objected to the court's ruling. Assignment of error 3(f) is without merit. The court allowed the defense to question Detective Cox about what James had told him about the defendant in his taped statement.
The defense also called Detective Fairbanks during the presentation of its case. Referring to Detective Fairbanks's May 23, 2006, or May 24, 2006 interview with R.M., the defense asked, "didn't she tell you that she had already seen?" The State raised a hearsay objection. The defense claimed that it was not offering what R.M. told Detective Fairbanks for its truth. The court sustained the objection, finding that R.M.'s statement was an out-of-court statement made by a declarant who was not present, offered to prove the truth of the matter asserted and no hearsay exception applied. Assignment of error 3(g) is without merit. The defense was attempting to establish that R.M.'s in-court identification of the defendant was corrupted by her having viewed his picture on the news. R.M., rather than Detective Fairbanks, was the proper witness to question concerning the issue. Indeed, the defense had already cross-examined R.M. concerning her seeing the defendant's picture on television following the offense and her inability to pick his picture out of a photo lineup on May 15, 2006.
This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the defendant's convictions and sentences on Counts I, II, IV, V, VI, VII, VIII, and IX are affirmed.