State Of Louisiana VS Larry Mack
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 1225 STATE OF LOUISIANA VERSUS LARRY MACK I1 f Judgment Rendered On December 21 2007 appeal from the Nineteenth Judicial District Comi In and for the Parish of East Baton Rouge State of Louisiana Suit Number 6 06 0900 Honorable Wilson Fields Doug Moreau District Attorney Presiding Counsel for Appellee State of Louisiana Dylan C Alge Assistant District Baton Rouge Attorney LA Frederick Kroenke Counsel for Louisiana Larry Mack Baton Appellate Project Rouge LA BEFORE fll WHIPPLE GUIDRY AND fI 1 7 HU ijES JJ JuJ fo c lA AI fULC l1p Qefendant Appellant fJy uP GUIDRY J The defendant of second one count not guilty Larry Darnell Mack degree kidnapping Following a a jury trial he sentenced to fifteen years violation of La R S found was He hard labor at charged by bill of information with was guilty as 14 and pled He was charged appeals now 1 44 designating one We affirm the conviction and sentence assignment of enor ASSIGNMENT OF ERROR 1 The failure of trial counsel identification of the defendant suggestive photo line file to a or to by the witness motion object to suppress the photo the unconstitutionally to up at trial constitutes ineffective assistance of counsel FACTS The victim Vanessa Moore gave the the following account of the offense On evening of May 26 2006 she left 5548 Steams Street in her vehicle and drove in the direction of Plank Road road a man Approximately approached her vehicle on went around to pulled The area a opened pointing a and then to turn saw some back to at which left police on shoot the victim if she s to at man at Halfway the end of the After man or The door s side door mover d The got into the vehicle and wanted drive to to go back The to turn right down Ford Street however the street and ordered the victim with the man s to to man drive drop him off demands that While grandfather Plank Road ordered the victim complying 2 to locked and opened the the passenger back ed up ordered her man Thereafter the Sumrall unlocked to open someone was that she did not know him was side door and the Ford Street officers half blocks down the one the victim about his sister and his the victim the Plank Road barbershop side just pistol whipped spoke man gun to the passenger stated he had The s man flat black gun and told the victim threatened man victim man out the driver and the passenger side which told her to open the door The victim told the man two at a the victim drove home and repOlied the incident description and clothing description of the Four a to the photograph from the line at Baton trial as her up in side of his whipped to two 220 was Officer photographic six seconds or line up She also identified the two as a gold teeth s had gun discharged several times complaint black male one She also indicated that he told her he had that his on each just pistol that he the twenty five years old and that he had just been released from jail Stanley contacted the police officer investigating the crime description given by description the copy as victim was Additionally witnesses the perpetrator of that crime of the defendant s indicated the defendant on Ford of the suspect in that offense matched the kidnapping Street crime named the defendant a a The victim selected the defendant s pounds with braided hair and Street and learned the obtained view The victim described her assailant front teeth someone defendant to Rouge Police Officer Jeremy Stanley received the victim 200 physical a kidnapper concenling the kidnapping weighing five The victim gave man days later the police asked the victim containing the defendant s photograph defendant police Louisiana driver s to the Ford Officer license Stanley The license twenty five years old and matched the victim s description of the kidnapper The defendant testified at He trial possession of cocaine and simple burglary pulling a gun accusation on the victim and against him was O Neil had rented his truck and he kidnapping her false and that the to conceded he had convictions for defendant s enemies whom he did not as name 3 drug dealer He claimed the He denied pistol whipping alleged victim of that offense Wade the defendant in O Neil and the victim had named him was a exchange for cocaine their assailant because had given them his name He claimed one of the INEFFECTIVE ASSISTANCE OF COUNSEL In his sole in the photo assignment line up with failing to move to of gold enor the defendant argues he teeth and thus defense counsel suppress the identification State unless the record proceedings U S 1194 121 S Ct 1196 149 L 2d Ed generally relegated 104 S Ct 2052 80 L Ed 2d 674 was performance serious was that Amendment prejudiced the ineffective he was not the defense functioning serious that defendant This element was that the Rather enor he reasonable had must as to counsel requires State Washington 466 show that the attorney s a enors so guaranteed by the Sixth that the deficient showing on s the that the outcome performance enors were so must prove actual of the unprofessional enors proceeding there is a of the trial would have been different Further address the issues of both counsel v test It is not sufficient for defendant to show the defendant if the defendant makes components first must prove conceivable effect outcome appeal denied 531 cert showing that counsel made show that but for the counsel probability the it is unnecessary to some a v deprived of a fair trial the defendant prejudice before relief will be granted post In order to establish that his trial must requires Secondly the defendant to analyzed under the two pronged 1984 defendant deficient which on up III 2001 developed by the United States Supreme Court in Strickland attOlney ineffective for was 776 So 2d 396 411 A claim of ineffectiveness of counsel is U S 668 only person permits definitive resolution Miller 99 0192 p 24 La 9 6 00 v the suggestive photographic line as a A claim of ineffective assistance of counsel is conviction was an s performance and prejudice inadequate showing on one of the Serigny 610 So 2d 857 859 60 La App 1st Cir 1992 writ denied 614 So 2d 1263 La 1993 A defendant who seeks to suppress First he must prove an identification that the identification itself was 4 must prove two suggestive Secondly things he must show that there oppOliunity 4 likelihood of misidentification The factors procedure witness s was a of the witness degree 2d So State attention on depicted in resemblance 2005 2517 pp In reasonably 1st Cir App 5 30 03 criminal La 1st Cir 6 9 06 App 955 2d So array is not 684 required however there the identification test 12 22 00 938 a witness s 775 2d So State 670 677 must be sufficient Johnson 2000 0680 p 7 v writ denied 2002 1368 La 845 So 2d 1066 concluding line up itself On the other guys that he was saw photograph 4 photographs to cross s only person in the line up with testimony at no gold teeth the trial rather than the photographic examination defense counsel asked the victim Defense counsel the defendant s in the line up The victim s was her It people was gold teeth s like So none one of responded certainty that line up of the other five Defense counsel kidnapper was made him stand out about the two The victim rather than Did any other response gold teeth testing the victim photograph depicted the victim had been defendant the in the photographic line up had Not that I question the of physical characteristics among the persons identity defendant relies upon the victim really 6 7 procedure is suggestive if it unduly focuses photographic to 2 the time of the crime the certainty and 5 the time between the crime and the the suspect Strict a 1 are prior description of the 147 152 writ denied 2006 2466 La 4 27 07 An identification La at 3 the accuracy of his Caples v result of the identification assessing reliability view the criminal to of attention the witness s level of confrontation be considered in to as a s previous in that line up look like the some distinctive things that in his mouth and the braids in his hair In the instant defense counsel did identification The case not the photographic line up was perform deficiently in failing photographic line up consisted of 5 not to suggestive move and thus to suppress photographs of six the young black males male s Five of the males mouth braided hair 10 26 99 was closed See State 763 So 2d 1 including and four of the males reI ex Roper 5 per curiam If the substantive issue So 2d 733 the claim the attorney the defendant had Cain v including 99 2173 6 p an attorney failed failing to to the sixth the defendant La raise has 17 11 no had 1st Cir App writ denied 2000 0975 La ineffective for was gold teeth 773 00 merit then raise the issue also has no merit This assignment of error is without merit REVIEW FOR ERROR Initially which we note that our provides that the only designated in the assignments review for matters of error error to and be considered error inspection of the pleadings and proceedings evidence court C CrP prejudiced in appeal we App 1st Cir La Supreme to 920 2 art any way court s failure to on failed See La R S 14 sentence under La to La on C Cr P appeal that is discoverable and without 920 art are by a errors mere inspection of the La C Cr P art 920 2 The trial the is pursuant no 12 28 06 Court on 1 44 C it is by the court deny parole take deny the defendant parole for action was Although the failure certainly harmless s not error him at to least two years deny parole is raised by the State in either the trial 952 So 2d 112 124 25 See State en banc 1 24 07 2007 K 130 CONVICTION AND SENTENCE AFFIRMED 6 parole v not Because the trial to regarding the same error The defendant is failure deny of comi or Price 2005 2514 La petition for cert filed at
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