State Of Louisiana VS Kendrick D. Brock
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 0290 STATE OF LOUISIANA VERSUS KENDRICK D BROCK Judgment Rendered September fy On appeal 14 2007 from the Twenty Second Judicial District Court In and for the Parish of Washington State of Louisiana Suit Number 05 CRl 92890 lrIrJ Honorable William J Burris Presiding Walter P Reed Counsel for Appellee District State of Louisiana Attorney Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Prentice L White Louisiana Baton Appellate Project Counsel for Defendant Kendrick D Brock Rouge Louisiana Appellant BEFORE WHIPPLE GUIDRY AND HUGHES JJ GUIDRY J Defendant Kendrick D Brock of armed count second robbery degree battery a guilty violation of La R S a was tried before court robbery conviction five years at sentences to After Count 1 14 34 1 a jury and Count 2 one After count of entering which determined defendant subsequently sentenced defendant hard labor without benefit of probation armed 14 64 one charged as The trial at charged by bill of information with violation of La R S pleas of not guilty defendant was was The trial parole court hard labor for his second be served or to serve suspension ninety nine of sentence further sentenced defendant years for his to serve degree battery conviction with these concurrently considering the assignment of error raised by defendant affirm his we convictions and sentences FACTS Marcus Irvine Ir Franklinton Louisiana store removing that sat arrived in foot above the approximately a the boxes gray sedan Defendant According on him produced from Irvine Irvine to was the cargo bin of ground rather than 5 30 p to m Irvine on was place an at a outside the in the trash bin eighteen wheeler explained that he The tractor to in of the thirty trailer wheels was was store rear approached by defendant who had Defendant exited his vehicle and asked Irvine for defendant several boxes knife 2005 boxes from the inventory trailer long inventory trailer At employed by Cingular Wireless On March 30 foot a was moving in a few days some of Irvine gave use Irvine defendant then tackled him into the trailer and Defendant demanded Irvine At the time defendant s wallet which Irvine standing approximately was between Irvine and the doors 2 to the trailer pulled a immediately three feet away Defendant searched Irvine through s wallet and told him that if he screamed Defendant took all of the money in Irvine of the trailer wallet 40 and then closed the doors Placing Irvine in a chokehold defendant told him that he would slit ing throat if you holler your M F s Irvine testified that he and defendant or scream struggled with each other until defendant hit Irvine some type of object As Irvine lay on the back of the head with the floor of the trailer defendant searched on through his pants and socks Defendant then ordered Irvine the trailer he would kill him Irvine testified that he felt if he to move to the back of complied with this order he would be killed When Irvine failed attack him mouth to move Irvine estimated that defendant kicked him knocking off his glasses and recalled that he lost consciousness experienced staggered a the back of the trailer defendant to When he causing several probably eight cuts to due to the regained consciousness few blocks to the Sheriff s Office to ten began times in the his face heavy loss Irvine of blood he defendant had left where he was to Irvine then taken to a hospital At the hospital Irvine 5 6 to drove a 6 2 a dark complexion gray sedan with statement to On noticed with rusty rims the Franklinton Police April 27 2005 one provided as Irvine of his coworkers description of his assailant a as a man about Irvine also told the police that his assailant A few days later Irvine provided a taped Department was working assisting a at the customer Cingular Wireless whom Irvine Store he recognized being his assailant According to Irvine when he overheard the customer speak his coworker he knew that the him check over Defendant on at him him was waiting customer was the man while another employee as to who had attacked and robbed was preparing to do a credit Irvine testified that defendant removed his identification looked and then placed his identification back into his wallet 3 Irvine contacted the he was so after the defendant left the police At trial Irvine testified that store fearful of defendant s presence in the store that he considered quitting his job On April 28 2005 Irvine took the day off from work He transpired returned defendant in the store and pose defendant in order was his eyes and listen to get a case to for his Irvine they could get defendant attempt to random case and be the same the license store of the out brought it defendant left the phoned was able to to with store as a case quickly Irvine watched him walk on the was as was to a to come According to Irvine another at the store to him and look his assailant possible in was the phone Irvine store In picked an out a dealing with defendant As gray sedan that day of the robbery Irvine appeared wrote to down plate number of the vehicle MGY483 and then contacted the police this incident idea of who Irvine s defendant and had The vehicle Department investigated Once Irvine contacted the police with the license for the vehicle defendant a to for his cellular Detective James Holmes of the Franklinton Police prepared friend agitated while he the coworker who vehicle defendant used a again encountered get very close speech to confirm that this provide him not and phone he had acquired Irvine testified that defendant grew because 2005 monitor the situation a in the store Irvine to 29 April on Wireless Store customer trying While defendant at Cingular as a was work to consider what had to was was seen assailant was driving Detective Holmes stated that he had Moreover Detective Holmes recently observed him driving around traced to an acquaintance Detective town was in an familiar with a gray sedan of defendant Detective Holmes photographic lineup using photographs of25 and 35 with plate information of black males between the ages extremely short hair and medium to dark complexions Holmes showed Irvine identified defendant s the photographic lineup photograph picture number 3 4 as his assailant and Irvine Irvine and Detective Holmes each testified that Holmes to as which picture to The State also called Crime Lab an to A testify scene could not Carly Buras stipulation Defendant did fingerprints not made by Detective was a forensic scientist with the State Police made between the parties that Buras was Buras examined the evidence recovered from the which included Irvine detect any were select expert in fingerprint analysis crime suggestions no on s brown leather wallet Buras testified that she the wallet testify IDENTIFICATION OF DEFENDANT In defendant s sole Irvine as because the to failing procedure Secondly defendant also identity error he grant his motion was entire argument is based store Defendant argues that there perpetrator identification of him As suppress on a an suggestive s as his contention that he where Irvine worked was no some a resemblance was few weeks to independent evidence the actual to verify the perpetrator Suppress general out identification witness photographic overly suggestive and extremely biased following this incident and that he possibly bore Motion to to suppress the argues that the evidence is insufficient to prove his misidentified because he entered the s First defendant argues that the perpetrator of these crimes as Defendant s Irvine challenges his identification by the perpetrator of these crimes in two ways the trial court erred in lineup assignment of a of matter the defendant has the burden of court identification defendant must An identification attention is suggestiveness La C Cr P proof 703 D art first prove that the identification procedure unduly focused is on suggestive if motion to To suppress an on a procedure during the procedure the the defendant However of the identification process is proven by the defendant 5 was even or where presumed by the the defendant court of misidentification 2003 1980 p 19 as a La also show that there must result of the identification 1 4 05 898 So 2d 1219 substantial likelihood was a State procedure 1232 33 cert Higgins v denied 546 U S 883 126 S Ct 182 163 L Ed 2d 187 2005 The Supreme Court held in Manson S Ct 2243 2254 53 L Ed 2d 140 pretrial identification an which circumstances courts irreparable examine must whether the the witness time of the crime 2 the witness of the criminal confrontation and 5 the license was on determine from a opportunity of the motion prepared a a Under Manson the the totality of the substantial likelihood of to view the criminal degree of attention 3 the 16 97 S Ct 97 if there does not exist misidentification the level 116 accuracy of his demonstrated certainty at the prior at the Manson v at 2253 54 to suppress Detective Holmes testified that suspect after Irvine contacted him with information regarding car defendant familiar with defendant and was driving aware Detective Holmes that defendant photographic lineup with defendant s was driving machine Detective picture and five other who resembled defendant Detective Holmes the permissible matching the description given by Irvine Using the AFIS Holmes men a 4 plate number of the testified that he a car at 114 hearing defendant became s s 98 the time between the crime and confrontation Brathwaite 432 U S At the to 432 U S despite the existence ofa suggestive suggestiveness presents misidentification include 1 description that identification may be very substantial likelihood of factors 1977 Brathwaite v lineup Irvine pictures at the At the time he viewed the Detective Holmes identity which met displayed each in front of Irvine photograph was that Cingular Wireless lineup Irvine the six photographs store and was unaware in two Detective Holmes denied that he of the suspect 6 He stated he did showed him of defendant rows s of three ever indicated not position defendant picture on influence s Irvine Irvine in the manner during Irvine testimony did s lineup in any was not in presented Detective Holmes make any Based on procedure the record Defendant identification attention times there was viewing a manner failed nor that would draw attention did he exert to it the was picture nor did suspect s there is any evidence that the identification any manner show that the police conducted for the sake of argument unfairly focused on suggestive a can substantial likelihood of misidentification be used Irvine assuming even defendant because he had been in the following the incident the Manson factors was a it of Detective Holmes in that no suggestion regarding which picture to However to of the lineup dispute that cannot say we suggestive in was s that would draw attention s store two to determine whether to warrant suppression of the lineup First Irvine testified that during the incident defendant stood within three feet of him when he demanded his wallet Second Irvine testified that defendant drove up Third Irvine s to the trailer and Irvine testified that after was viewed the one observing month a defendant in the was the man close eye although on was the assailant to his voice who robbed and beat him Finally store and was him matched vague Fourth Irvine testified he photographic lineup that defendant positive that defendant approximately assailant significant discrepancies certain when he viewed the he of his prior description defendant and lacked any requested boxes he kept as soon as listening elapsed from the time the crime occurred until Irvine photographic lineup traumatic for him and there is Irvine testified that the entire nothing to event was very indicate the passage of this time affected his memory of the event Applying the Manson factors we likelihood of misidentification of defendant 7 cannot as say there was a substantial the perpetrator that would warrant suppression of the lineup motion Accordingly the trial court did not in err denying the to suppress StifJiciency of the Evidence The standard of review for the conviction is whether prosecution sufficiency viewing the evidence in the light reasonable doubt a defendant s identity committed the State misidentification of the offense 2d So as The State La identity C Cr P as 821 art is required to favorable evidence beyond we was defendant Johnson v Where the or key issue is the the crime not 4 p La La 3 15 96 to see to incorrectly identified him was App 1st Cir 10 6 95 Irvine close to 669 So 2d 426 including on the or as the perpetrator reviewing the was and attacked him established was certain As during the robbery and had occasions he entered the two when defendant This Court will accept the perpetrator After Instead he testimony indicates that he s defendant performed after seeing Irvine in the evidence identity 664 previously an opportunity closely and hear his voice Irvine was able to closely observe and listen defendant s voice robbery s as the individual who robbed discussed Irvine was negate any reasonable probability of to 94 1561 conclude defendant was the testimony of a victim is sufficient to establish the elements reasonable doubt a to a proved the essential The defendant does not contest the elements of either offense argues that he uphold the perpetrator of that crime the perpetrator rather than whether 144 writ denied 95 2988 141 most any rational trier of fact could conclude the State elements of the crime and the defendant s beyond of the evidence to overturn reject a not assess factfinder in whole or s decided store against having a following credit the check store the credibility of witnesses determination of in part the guilt reweigh the The trier of fact may testimony of any witness 8 or State v Lofton 96 1429 p 5 1124 La The La 17 10 jury testimony description 97 s 1st Cir 3 27 97 App 701 2d So there in this were case some of the vehicle defendant was clearly minor and not fatal to defendant s Viewing the evidence in the light the evidence is sufficient crimes This to prove indicate discrepancies using on vehicle the police associated with defendant and were 1368 writ denied 97 1331 guilty verdicts Although 691 So 2d 1365 defendant photographed as to such initial discrepancies identity as the prosecution we find the perpetrator of these assignment of error is without merit CONVICTIONS AND SENTENCES AFFIRMED 9 s s the perpetrator favorable s between Irvine Irvine the date of the incident and the identification most they accepted
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