Judgment rendered January 16, 2013.
Application for rehearing may be filed
within the delay allowed by Art. 922,
COURT OF APPEAL
STATE OF LOUISIANA
STATE OF LOUISIANA
RANDALL WAYNE WOMACK, JR.
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 188,009
Honorable Michael O. Craig & Ford E. Stinson, Jr., Judges
TERESA CULPEPPER CARROLL
RANDALL W. WOMACK, JR.
J. SCHUYLER MARVIN
JOHN M. LAWRENCE
R. LANE PITTARD
Assistant District Attorney
Before BROWN, HARRISON (Pro Tempore)
& SEXTON (Pro Tempore), JJ.
SEXTON, J. (Pro Tempore)
Defendant, Randall Wayne Womack, Jr., was found guilty of both
armed robbery and attempted armed robbery. He was subsequently
sentenced to 50 years at hard labor for the armed robbery conviction and
15 years at hard labor for the attempted armed robbery conviction, with the
sentences to be served concurrently. Defendant now appeals. For the
reasons stated herein, Defendantâs convictions and sentences are affirmed.
On September 17, 2010, Defendant and three other men, Dillon
Murphy, Joshua Lopez and David Weeks, committed an armed and
attempted armed robbery against victims Jose and Orlando Tecciau,
respectively, at the victimsâ home in Plain Dealing, Louisiana. While Lopez
waited in the car, Defendant, Weeks and Murphy armed themselves with
weapons and entered the house. They kicked open the bedroom door, found
the victims and demanded money. Murphy grabbed a wallet from the
dresser and the men fled from the house. Murphy and Lopez escaped in the
vehicle, while Weeks and Defendant fled on foot. Shortly thereafter, police
apprehended Defendant within a mile from the victimsâ home and drove him
back to the scene where he was identified by the victims as one of the
persons who robbed them. Police found the vehicle abandoned and
discovered a sword, billy bat and pipe in the back seat. The other three men
were subsequently arrested. On June 22, 2011, the State filed a bill of
information charging all four men with one count of armed robbery and one
count of attempted armed robbery. An amended bill was filed on
December 12, 2011, charging them with the same crimes, but adding three
other possible dangerous weapons as being used during the commission of
the crimes. While his three co-perpetrators entered into plea agreements
and received sentences of up to three and five yearsâ imprisonment at hard
labor, Defendant pled not guilty and elected to proceed to trial.
At trial, the jury heard testimony from multiple witnesses called by
the State. Bossier Parish Patrol Deputy Mike McConnell testified that he
was dispatched to the scene and that he took statements from the victims.
Jose and Orlando Tecciau described the perpetrators as three short white
males with long knives. On cross-examination, Dep. McConnell testified
that there was no appearance of physical damage to the door, nor any signs
of a struggle inside the home.
Bossier Parish Detective Brandon Masters testified that he met
Dr. Robert Hewlett, a veterinarian and the victimsâ employer and landlord,
at the end of Linda Lane. Dr. Hewlett testified that he lived one-half mile
from the Tecciau house and was in his driveway leaving his residence when
Jose called him and told him they had been robbed. Dr. Hewlett drove to
the Tecciau house and saw Defendantâs vehicle. As he approached, the
vehicle sped away and Dr. Hewlett chased the perpetrators until the vehicle
turned onto a dead-end street. The men abandoned the vehicle and ran
through the woods. Dr. Hewlett waited with the vehicle and Det. Masters
was among the responding officers. Det. Masters testified that he had the
vehicle towed to the impound lot. He then returned to the Tecciau home
and interviewed Jose Tecciau, who told him that three men came into their
home with weapons and robbed them.
After leaving the Tecciau home, Det. Masters was stopped by a
passing motorist, who informed him that a man was walking on Old Plain
Dealing Road and attempting to hitchhike. Det. Masters and a fellow
officer found the man approximately one-half mile from the victimsâ home.
After a brief chase, Det. Masters and the other officer apprehended the man,
placed him in the back of the patrol unit and drove him to the victimsâ home
where they positively identified him as one of the persons who robbed them.
The man was later identified as Defendant.
According to the testimony of Deputy Josh Cathcart, Defendant told
officers that Weeks and Lopez were with him that evening. Det. Masters
used his patrol unitâs computer to pull Lopezâs, Weeksâ and Murphyâs
driverâs license photos and asked the victims to identify the men in the
photos. They identified Weeks as one of the men who had robbed them.
Det. Masters eventually went to the impound lot where the vehicle had been
towed and observed a small sword, large sword sheath, billy bat and pipe on
the floorboard of the back seat. Sergeant David Faulk, of the Bossier Parish
Office Crime Scene Investigations Unit, corroborated Det. Mastersâ
testimony as to the weapons found inside the vehicle. In addition, a wallet
containing Defendantâs identification was found in the center console of the
Murphy testified at trial. He stated that, prior to the robbery, the four
men met at Weeksâ home in Shreveport where Defendant discussed plans
âthat we go to these Mexicans out on this ranch out here in Plain Dealing
and that they just got paid so that theyâve got a lot of money and we rob
them.â Later that night, Lopez drove the men to Plain Dealing where he,
Defendant and Weeks, armed with a billy bat, sword and pipe, entered Jose
and Orlando Tecciauâs home. According to Murphy, âthe bedroom door got
kicked open and he [Defendant] held the Mexican up with the sword...I took
the wallet off the dresser and took off running.â Murphy testified that he
jumped in the car with Lopez and the two sped away from the home.
Murphy further testified that he removed the money from the wallet and
tossed the wallet out of the car. An empty brown wallet was recovered by
police that night on the side of Doyal Road, near the Tecciau home. Jose
Tecciau identified the wallet found on Doyal Road as his wallet that had
been taken during the robbery.
Lopez testified next and offered inconsistent testimony. When first
asked by the district attorney if Defendant had an idea or plan to commit a
crime on the evening in question, Lopez responded affirmatively that âwe
were going to rob some Mexicans.â Later in his testimony, when the district
attorney asked him what was his understanding as to the events that were to
take place that night at the victimsâ home, Lopez stated that, âI really donât
know what was supposed to take place. The only thing I knew I was
supposed to go solicit prostitution. Thatâs it.â1 He again changed his story
when the district attorney asked him, âNow earlier that evening, though, I
think you already testified that when [Defendant] came to the house he
Lopez is a cross-dresser and homosexual and was dressed like a woman on the night of
the robbery. According to his testimony, Defendant was âpimpingâ Lopez out for sex. Lopez
explained that the two had been at the ranch in Plain Dealing earlier in the day for prostitution
and had made money. The record reveals that the âranchâ has several rental houses on it; and,
according to Lopez, there were 15-20 Mexicans there that afternoon for a rodeo. Lopez testified
that he believed that they were returning to the ranch that evening for more prostitution;
however, Defendant decided to change the plan from prostitution to robbery.
discussed committing a robbery. Is that correct?â Lopez responded, âYes,
With regard to Defendantâs state of mind prior to the robbery, Lopez
testified that â[Defendant] was the â he was still asleep and he and my
brother and them was in the back. He was asleep. On the way there he was
still drinking because there was still some more drink left. He was drinking
still and he was asleep and he had a headache and he just layed [sic] down
until we got there.â
Lopez further testified that, once the four men arrived at the victimsâ
home, he remained in the vehicle while Defendant, Weeks and Murphy
âmust have got weapons out of the back of the trunkâ and went inside.
After a short period of time in the house, the three men came running
outside. Lopez stated that Murphy jumped in the car with him while his
brother, Weeks, threw âsome stuff in the back of the seat.â Lopez claimed
that he did not know what took place inside the house, but that âI just know
that [Murphy] had the money in his hand. I didnât know nothing about no
wallet.â During cross-examination, defense counsel asked Lopez if he ever
saw Murphy with a âbig wad of cash,â which he denied.
Weeks also testified. He related that Defendant âhad been drinking a
little bit,â but âhe had done sobered up a little bitâ by the time Defendant
arrived at Weeksâ home in Shreveport. Weeks corroborated Lopezâs story
that the original plan was to solicit prostitution, but claimed that, when they
arrived in Plain Dealing, âit all went wrong and he [Defendant] wanted to
rob them.â Weeksâ testimony also confirmed the fact that he was armed
with a pipe while Defendant had a sword and Murphy had a billy bat.
According to Weeks, Defendant kicked in the bedroom door; and, when the
victims started to get up from their seats, Weeks told them, âNo, man, donât
move. Just stay right there. Donât you move.â He stated that âMurphy
grabbed the wallet off the thing because he was told to and he followed
right behind me.â
Finally, the victims, Jose and Orlando Tecciau, testified. Neither
victim is fluent in English; therefore, an interpreter assisted them. Jose
confirmed that the three men took the wallet off the dresser and fled from
the house. When the district attorney asked him who was the perpetrator
with the sword, he responded that it was âthe same person that he identified
in the patrol [unit]â and he explained that he was able to identify Defendant
as one of the intruders because âhe was in front of me and thatâs the only
reason why I remember him completely.â On cross-examination, defense
counsel asked Jose if he recognized the two people in the pictures shown to
him by the officers and he responded that they looked familiar.
Orlando Tecciauâs testimony was more difficult to follow, possibly
because of the language barrier. He stated that three individuals came
âbusting the [interior] doorâ and demanded money. While he first denied
that the intruders had any weapons, he immediately stated that one man had
a baseball bat. He claimed that he could only see one person because he
was sitting in front of a television when the men entered the room.
However, he then testified that he never saw their faces and could not
identify the individuals because when he stood, the men were walking away
from him. Orlando testified that the men were wearing dark hoodies at the
time of the robbery.
As previously stated, on December 14, 2011, the jury found
Defendant guilty as charged of both the armed robbery of Jose Tecciau and
the attempted armed robbery of Orlando Tecciau. During sentencing, the
court considered Defendantâs extensive criminal history, his brief and
inconsistent employment history, his familial relationships, the need for
correctional treatment, the fact that his crime created a risk of death or great
bodily harm to more than one person, the use of threats of violence during
the commission of the crime and the belief that a lesser sentence would
deprecate the seriousness of the crime. As stated, Defendant was then
sentenced to serve 50 years at hard labor for the armed robbery and 15 years
for the attempted armed robbery, with the sentences to run concurrently. A
Motion and Order to Reconsider Sentence was denied.
Defendant now appeals.
Assignment of Error Number One (Verbatim): The jury erred, as a matter of
law, in finding the defendant guilty as charged based on insufficient
The standard for review in cases that raise sufficiency of the evidence
is found in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). The Jackson standard, now legislatively embodied in La. C. Cr.
P. art. 821, does not provide the appellate court with a vehicle to substitute
its own appreciation of the evidence for that of the fact finder. State v.
Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La.
App. 2d Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310 (La. 11/06/09),
21 So. 3d 297. The appellate court does not assess the credibility of
witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95),
661 So. 2d 442. A reviewing court accords great deference to a jury's
decision to accept or reject the testimony of a witness in whole or in part.
State v. Eason, 43,788 (La. App. 2d Cir. 2/25/09), 3 So. 3d 685, writ denied,
09-0725 (La. 12/11/09), 23 So. 3d 913; State v. Hill, 42,025 (La. App. 2d
Cir. 5/9/07), 956 So. 2d 758, writ denied, 07-1209 (La. 12/14/07),
970 So. 2d 529.
The trier of fact is charged to make a credibility determination and
may, within the bounds of rationality, accept or reject the testimony of any
witness; the reviewing court may impinge on that discretion only to the
extent necessary to guarantee the fundamental due process of law. State v.
Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840,
121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). In the absence of internal
contradiction or irreconcilable conflict with physical evidence, one witness's
testimony, if believed by the trier of fact, is sufficient support for a requisite
factual conclusion. State v. Gullette, 43,032 (La. App. 2d Cir. 2/13/08),
975 So. 2d 753; State v. Burd, 40,480 (La. App. 2d Cir. 1/27/06), 921 So. 2d
219, writ denied, 06-1083 (La. 11/9/06), 941 So. 2d 35.
An appellate court reviewing the sufficiency of the evidence must
resolve any conflict in the direct evidence by viewing that evidence in the
light most favorable to the prosecution. When the direct evidence is thus
viewed, the facts established by the direct evidence and inferred from the
circumstantial evidence must be sufficient for a rational juror to conclude
beyond a reasonable doubt that defendant was guilty of every essential
element of the crime. State v. Jacobs, 504 So. 2d 817 (La. 1987); State v.
Adkins, 39,724 (La. App. 2d Cir. 6/29/05), 907 So. 2d 232, writ denied,
06-2514 (La. 5/4/07), 956 So. 2d 607; State v. Lott, 535 So. 2d 963 (La.
App. 2d Cir. 1988).
La. R.S. 14:64 provides:
Armed robbery is the taking of anything of value
belonging to another from the person of another or that is
in the immediate control of another, by use of force or
intimidation, while armed with a dangerous weapon.
Whoever commits the crime of armed robbery shall be
imprisoned at hard labor for not less than ten years and
for not more than ninety-nine years, without benefit of
parole, probation, or suspension of sentence.
The immediate control required of the armed robbery statutes is
satisfied when the property taken is within the presence of the owner. State
v. Refuge, 300 So. 2d 489 (La. 1974). Armed robbery may occur where
property taken is not in actual contact with the victim. State v. Boelyn,
432 So. 2d 260 (La. 1983).
Any person acting with specific intent to commit a crime, who acts or
fails to act, with the purpose of and toward that goal is guilty of an attempt
to commit the offense intended, regardless of whether he would have
actually accomplished that goal. La. R.S. 14:27. The state may prove a
defendant guilty by showing that he served as a principal to the crime by
aiding another. State v. Scroggins, 40,746 (La. App. 2d Cir. 3/22/06),
926 So. 2d 64, writ denied, 06-0980 (La. 11/3/06), 940 So. 2d 655. Under
this theory, the defendant need not actually take anything to be found guilty
of the crime. Id.; State v. Dominick, 354 So. 2d 1316 (La. 1978). Also, a
defendant convicted as a principal need not have personally held a weapon
to be guilty of armed robbery. State v. Watson, 397 So. 2d 1337 (La. 1981),
cert. denied, 454 U.S. 903, 102 S. Ct. 410, 70 L. Ed. 2d 222 (1981). A
person, who aids and abets another in a crime, is liable just as the person
who directly commits it. Id. A critical inquiry in robbery cases involving
principals is whether or not the alleged principal had knowledge that the
crime was going to take place. Id.
Louisiana law allows an accomplice to testify against a co-perpetrator
even if the state offers inducements to testify. Such inducements are a fact
in evaluating the witnessâs credibility. State v. Hughes, 05-0992 (La.
11/29/06), 943 So. 2d 1047. A conviction may be sustained by the
uncorroborated testimony of an accomplice, although the jury should be
instructed to treat the testimony with caution. State v. Hughes, supra.
In the case sub judice, police apprehended Defendant half a mile from
the Tecciau residence shortly after the robbery was committed. When
officers attempted to approach Defendant, he immediately fled. All three
co-perpetrators, as well as the victims, testified that Defendant was one of
the men who took part in the armed robbery. The evidence was sufficient
for a trier of fact to conclude that Defendant was at the residence on the
night of the armed robbery.
Murphy stated during his testimony that he took the wallet from the
dresser and ran out of the room. This was corroborated by Weeksâ
testimony. As a principal to armed robbery, it is of no consequence that
Defendant neither physically took the wallet, nor directed Murphy to do so;
any actions performed by his co-perpetrators are imputed to him. As such,
the evidence submitted would allow a jury to find that, as a principal to
armed robbery, Defendant took the wallet from the victimsâ home.
Next, the State introduced sufficient evidence for the jury to conclude
that the wallet was within the immediate control of the victim. Murphy
testified that he took the wallet from the dresser and ran. Jose Tecciau
testified that his money was in his wallet on the nightstand and one of the
robbers picked it up. From this evidence, a trier of fact could find that the
victimâs wallet was on a dresser in the room where the victims were located
and, as such, was within the immediate control of the victims.
With regard to Defendantâs claim that there was no proof of use of
force or intimidation, we note the testimony of Weeks and Murphy that
Defendant kicked open the bedroom door where the victims were located.
Orlando Tecciau corroborated this in his testimony when he stated that the
men burst through the bedroom door.
We further conclude that the jury could have reasonably found that
Defendant was armed with a dangerous weapon. Murphy testified that
Defendant âheld the Mexican up with the sword.â Weeksâ testimony
corroborated this when he stated that Defendant was armed with a sword
when the men entered the victimsâ home. In addition, Dep. McConnell and
Det. Masters both testified that, on the night of the armed robbery, Jose
Tecciau stated that three men entered their home and were armed with
Lastly, Defendant claims that he was too intoxicated to form the
requisite intent to commit the robbery and that the State failed to present
evidence to support a finding that he did have the necessary intent.
However, Weeks testified that Defendant had begun to sober up at the time
he unveiled his plan to commit the robbery. The verdict suggests that the
jury found this witnessâs evidence to be credible and that Defendant had the
requisite intent to commit the crime.
Though Defendant does not raise a sufficiency of evidence argument
with regard to the attempted armed robbery charge, there was ample
testimony presented for a jury to find that Defendant committed the offense.
In summary, from the evidence presented, a rational trier of fact could
conclude beyond a reasonable doubt that Defendant did knowingly and
willfully commit the crimes of armed robbery and attempted armed robbery.
This assignment of error is without merit.
Assignment of Error Number Two (Verbatim): The district court erred, as a
matter of law, in denying defense Motion to Reconsider Sentence and
sentencing the defendant to an excessive sentence.
In determining whether a sentence is excessive, the reviewing court
will first examine the record to ascertain if the trial court considered the
aggravating and mitigating factors under La. C. Cr. P. art. 894 in
determining a factual basis for the sentence imposed. State v. Smith,
433 So. 2d 688 (La. 1983); State v. Lathan, 41,855 (La. App. 2d Cir.
2/28/07), 953 So. 2d 890, writ denied, 07-0805 (La. 3/28/08), 978 So. 2d
297. The court must consider such factors as defendantâs personal history,
prior criminal record, seriousness of the offense and likelihood of
rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Ates,
43,327 (La. App. 2d Cir. 8/13/08), 989 So. 2d 259, writ denied, 08-2341
(La. 5/15/09), 8 So. 3d 581.
Second, a sentence violates La. Const. Art. 1, Â§20, if it is grossly out
of proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Smith,
01-2574 (La. 1/14/03), 839 So. 2d 1; State v. Dorthey, 623 So. 2d 1276 (La.
1993); State v. Bonanno, 384 So. 2d 355 (La. 1980). If the sentence
imposed, in light of the harm done to society, shocks the sense of justice,
then the sentence imposed is excessive. State v. Weaver, 01-0467 (La.
1/15/02), 805 So. 2d 166; State v. Robinson, 40,983 (La. App. 2d Cir.
1/24/07), 948 So. 2d 379. Maximum sentences are reserved for the worst
offenders and offenses. State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So. 2d
665; State v. McKinney, 43,061 (La. App. 2d Cir. 2/13/08), 976 So. 2d 802.
The trial judge has wide discretion in imposing sentences within the
statutory limits and in consideration of aggravating and mitigating
circumstances. Therefore, a reviewing court only considers whether the
trial court abused its discretion. State v. Williams, 03-3514 (La. 12/13/04),
893 So. 2d 7; State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert.
denied, 519 U.S. 104, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
La. R.S. 14:64 (B) provides:
[w]hoever commits the crime of armed robbery shall be
imprisoned at hard labor for not less than ten years and for not
more than ninety-nine years, without benefit of parole,
probation, or suspension of sentence.
Regarding attempted armed robbery, La. R.S. 14:27 (D)(3), states, in
pertinent part, that âsuch fine or imprisonment shall not exceed one-half of
the largest fine, or one-half of the longest term of imprisonment prescribed
for the offense so attempted, or both.â
Defendant focuses mainly on the trial judgeâs sentence for the
completed armed robbery conviction. The trial judge acknowledged
Defendantâs family consisting of a wife and two children, as well as his
inconsistent and unstable history of employment. The trial judge then
addressed Defendantâs lengthy criminal history of felony theft, simple
burglary, illegal use of weapons and attempted felony theft, as well as his
numerous convictions for sex crimes and crimes of violence. The trial judge
also considered the risk of death or great bodily harm to more than one
person threatened by Defendantâs actions. Lastly, the trial judge cited
Defendantâs use of threats of violence and dangerous weapons during the
commission of the crime. The trial judge also noted several of the factors
considered in the sentencing guidelines of La. C. Cr. P. art. 894.1 and
articulated his reasons for the sentence imposed.
The sentence imposed for armed robbery is mid-range, while the
sentence for the attempted armed robbery is far below the potential sentence
of 49 Â½ years. When the crime and punishment are viewed in light of the
harm done to society, 50 years in prison is not grossly disproportionate to
the crimes committed, and the sentence does not shock the sense of justice.
The trial judge did not abuse his discretion in imposing these sentences.
This assignment is without merit.
Pro Se Assignments of Error
Defendant, pro se, assigns four additional assignments of error on
appeal. Each of these assignments will be addressed in turn.
Pro Se Assignment of Error Number One (Verbatim): The District Court
committed error sufficient to reverse their ruling when they failed to provide
appellant with adequate record and transcribe appellantâs voir dire
examination and peremptory challenges.
On January 26, 2012, and April 10, 2012, Defendant filed pro se
requests for a free copy of his Boykin transcript, district court minutes,
documents committing him into custody and âevery document that have my
name on it dealing with my trial.â Defendant was provided a free copy of
his bill of information, criminal case minutes and documents committing
him to custody, but the judge denied him any other copies absent a showing
of a particularized need.
Defendant argues that he has been deprived of his constitutional right
to judicial review because the appeal record is inadequate for review. He
claims that the court reporter failed to transcribe the voir dire from the three
panels of prospective jurors, as well as the peremptory challenges.
La. Const. Art. 1, Â§ 19, states that âNo person shall be subjected to
imprisonment or forfeiture of rights or property without the right of judicial
review based upon a complete record of all evidence upon which the
judgment is based.â La. Const. Art. 1, Â§ 19. Additionally, La. C. Cr. P.
art. 843 provides in pertinent part:
In felony cases,... the clerk or court stenographer shall record
all of the proceedings, including the examination of
prospective jurors, the testimony of witnesses, statements,
rulings, orders, and charges by the court, and objections,
questions, statements, and arguments of counsel.
Courts have refused, however, to overturn a trial courtâs ruling when a
defendant does not cite to any error or evidentiary hearing relative to the
trial, or point to a specific instance of prejudice with respect to any ruling of
the court. State v. Neely, 08-707 (La. App. 5th Cir. 12/16/08), 3 So. 3d 532,
writ denied, 09-0248 (La. 10/30/09), 21 So. 3d 272. Here, Defendant has
made no showing that he has been prejudiced by the missing portion of the
record. Rather, and without any supporting argument, he simply states that
there is a strong possibility that prejudicial remarks tainted the jury and that
the omissions leave him with no form of the record in which he may seek
This assignment is without merit.
Pro Se Assignment of Error Number Two (Verbatim): The District Court
violated appellantâs due process of law when it allowed the State to use the
unduly suggestive identification made while appellant was in the back seat
of a patrol unit.
Defendant claims that his due process rights were violated when
police officers took him to the victimsâ home in the back of a patrol unit for
the victims to make an identification. Defendant further argues that his due
process rights were violated when an officer presented photos of him to the
victims for identification without first placing them in a photo lineup.
Initially, we note that Defendant failed to file a motion to suppress the
identifications of which he now complains. La. C. Cr. P. art. 841(A) states,
in pertinent part, âAn irregularity or error cannot be availed of after verdict
unless it was objected to at the time of occurrence.â Since Defendant did
not file a motion to suppress the identification prior to trial, he is now
precluded from raising this issue on appeal.
Nonetheless, we find that no violation of due process occurred herein.
To prove a violation of due process, a defendant must first show that the
identification procedure was unnecessarily suggestive and, second, that
there was a substantial likelihood of misidentification. Admitting evidence
of a suggestive identification procedure does not violate due process if the
identification is reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct.
2243, 53 L. Ed. 2d 140 (1977). When assessing the reliability of an
identification, the following factors must be considered: (1) the opportunity
of the witness to view the criminal at the time of the crime; (2) the witnessâs
degree of attention; (3) the accuracy of his or her prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation; and (5)
the length of time between the crime and the confrontation. State v. Kemp,
39,358 (La. App. 2d Cir. 3/11/05), 896 So. 2d 349, writ denied, 05-0937
(La. 12/09/05), 916 So. 2d 1052, citing Manson, supra.
While one-on-one identifications are generally not favored, such
identification procedures are permissible under certain circumstances. Oneon-one identifications are justified when the accused is apprehended within
a relatively short period of time after the occurrence of the crime and has
been returned to the scene for immediate identification. State v. Hurd,
05-258 (La. App. 5th Cir. 11/29/05), 917 So. 2d 567, writ denied, 06-1128
(La. 11/17/06), 942 So. 2d 530. Such prompt confrontations between the
defendant and the victim provide fairness by âensuring the reliability of the
identification and the expeditious release of innocent suspects.â State v.
Clennon, 98-1370 (La. App. 5th Cir. 6/30/99), 738 So. 2d 161.
Jose Tecciau testified that he remembered Defendant because
Defendant was standing directly in front of him during the robbery. Since
the victim was within close range of Defendant, he would have been able to
recognize Defendant. Second, police apprehended Defendant and brought
him back to the scene of the crime shortly after the robbery. Such a prompt
confrontation between the victim and Defendant ensured a reliable
identification as the victim could have easily recalled the appearance of the
defendant after only a short amount of time had passed between the incident
and the identification.
Furthermore, we find no support for Defendantâs claims that the
police showed the victims two photos of him. During the cross-examination
of Jose Tecciau, defense counsel asked Jose if he remembered police
officers showing him pictures of two other individuals, to which Jose
responded affirmatively. This is corroborated by the testimony of
Det. Masters who stated that he pulled up two photographs of Weeks and
Lopez on his patrol unit computer and showed them to the victims to
identify. At no point does the record indicate that the officers showed
photos of Defendant to the victims.
This assignment is without merit.
Pro Se Assignment of Error Number Three (Verbatim): When sentencing
appellant, Trial Court violated due process when relying upon aggravating
circumstances which were also necessary elements of the offense.
Defendant claims that the trial court erred when it took into
consideration for sentencing purposes certain provisions of La. C. Cr. P.
art. 894.1 that are also necessary elements of the crime of armed robbery,
particularly the use of a dangerous weapon and threats of or actual violence
in the commission of the offense.
La. C. Cr. P. art. 894.1 states in pertinent part:
B. The following grounds, while not controlling in discretion
of the court, shall be accorded weight in its determination of
suspension of sentence or probation:
(6) The offender used threats of or actual violence in the
commission of the offense.
(10) The offender use a dangerous weapon in the
commission of the offense.
The fact that some of the factors under La. C. Cr. P. art. 894.1(B) are
subsumed in the charge of armed robbery does not dictate that such factors
should not be considered in sentencing. State v. Willis, 45,857 (La. App. 2d
Cir. 12/15/10), 56 So. 3d 362, writ denied, 11-0150 (La. 6/17/11), 63 So. 3d
Defendantâs argument lacks any legal support and is without merit.
Pro Se Assignment of Error Number Four (Verbatim): The District Court
erred in that there was no justification in the record to support the great
disparity in sentences of the co-defendants in this case.
Defendant claims that the record failed to provide any justification as
to the great disparity between his sentence and that of his co-perpetrators.
There is no legal requirement, however, that a sentencing judge treat
codefendants equally. State v. Quimby, 419 So. 2d 951 (La. 1982).
This assignment is without merit.
Defendantâs final pro se assignment of error requests review for
errors patent. This Court automatically performs an errors patent check in
accordance with the guidelines laid down by the Louisiana Supreme Court
in State v. Oliveaux, 312 So. 2d 337 (La. 1975), and none were found.
For the foregoing reasons, the convictions and sentences of
Defendant, Randall Wayne Womack, Jr., are affirmed.