State of Louisiana In The Interest of E. R.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 KJ 0756 STATE OF LOUISIANA IN THE INTEREST OF E R Judgment Rendered Appealed from DEe 2 3 2009 the Juvenile Court Parish of East Baton Rouge State of Louisiana Case No 94 453 The Honorable Kathleen Stewart Richey Judge Presiding Katherine M Franks Counsel for Abita E R Springs Louisiana Appellant Hillar C Moore III Counsel for District State of Louisiana Jeanne Attorney Rougeau Appellee Assistant District Attorney Baton Rouge Louisiana BEFORE DOWNING GAIDRY AND McCLENDON JJ GAIDRY J A petition filed was the commission of one La R S RS count denied the E R adjudication hearing of armed was child ordered E R committed to be degree of armed delinquent based murder a robbery violations of La the to delinquent based on found the evidence of At the charge custody on violation of a allegations of the petition and court insufficient and dismissed the court counts adjudicated The trial robbery a of attempted first 14 27 and 30 and three 14 64 E R alleging after the three counts murder attempted the trial disposition hearing of the an Department of Public Safety and Corrections until his twenty first birthday appeals citing the following as E R error failing to grant the motion to suppress the identifications made by the three victims of the The trial 1 and an analysis of the Manson 53 L S Ct 2243 cross The identification robbery armed erred in judge racial 3d Ed 140 v procedures suggestive Brathwaite 432 U S 98 97 factors and the fact of 1977 identification were makes the a of likelihood misidentification great E R 2 against denied Due Process when the evidence adduced him was insufficient to sustain a conviction utilizing the was The trial Jackson standard of review grant a sustain evidence to of armed acquittal and in finding of delinquency for the offense robbery F or the and of judgment judge erred in failing to finding sufficient credible following a reasons affirm the we adjudication of s delinquency disposition FACTS On July Fielding were Rouge At 18 2008 sharing a residence located approximately residence and were Desendorf James Scullen Benjamin 11 00 p m carrying groceries 2 at 1510 the three from a and Seth Olive Street in Baton men had returned to the vehicle into the residence As made their way from the carport they young male approached by a E R asked the E R declined men pockets them and place men then the the door of the house subsequently identified if interested in were pulled contents on a phone turned and left the contacting ground They the as men ran well to as police arrived the black male twenty years old tall and clean shaven According shorts a dark shirt and Because of was not July in 23 town 2008 Desendorf an out during of the on state neighbor a or to provided younger the house emerged a met Detective Walters with his cell suspect whose However neither Desendorf prepared name nor a alley a of the robber approximately was 5 6 or 5 7 wearing dark Baton Rouge and E R arrest s with Desendorf and On Fielding printout of the incoming and a two days photographic lineup containing had arisen Fielding they remembered from the robbery as possibly being selected that not of a a involved photograph Desendorf did picture in the lineup and Fielding selected the photograph at in help an phone for the day of the robbery and a person who seek from description the robber men to keys After fleeing the area obligation Scullen left Larry Walters picture of someone men s investigation that resulted in Detective Walters following men E R told complied black hat Detective provided outgoing calls the empty their to wallets and change A few seconds later E R police After the a all drugs but the any weapon and told them the were the juvenile E R buying few houses away and fired shots at the men before as a as they step back and he bent down and picked up all the items which to included Desendorf s cell E R to as select any filler a possessed similar characteristics of the description provided by the scene 3 Detective Desendorf Walters phone records he located Detective Walters met Robertson claimed to a store on James Robertson have was numbers phone who had been the purchased Saturday July on able phone from some 19 2008 at establish when Robertson to s at the time he obtained the to ensure made the worked phone Robertson to Robertson picture s match the physical The s The cellular phone in a he called his phone around 11 00 10 56 at phone of the suspect investigation began to focus as on number records indicated call a was place not because Robertson did photographic lineup description statement s Detective Walters did a m a m of the possession telephone own phone kid in front of phone began because the phone records corroborated Robertson that on using the phone with Robertson and recovered Desendorf s Sixteenth Street Detective Walters the researching As he researched the numbers contained in the records phone s began not l provided by the witnesses E R after of the one whose number had been called from Desendorf s cell people phone after the robbery but before Robertson obtained the phone provided information the police that photographic lineup ER was admitted on taken into to having Monday had E R July was prepared custody the cell 21 information that calls Saturday July made after 11 00 phone I were Robertson for a m on which included questioning made an tall and weighed older than over a A photograph of E During 2008 July a man to E R hour after the E R s second R friends to to pounds 4 and he someone with acquaintances 11 00 Detective Walters the calls 19 2008 and until service was stopped on the making in his twenties two hundred s and questioning robbery and lasting until According calls Robertson admitted was robbery in the Detective Walters confronted E R were 19 involved phone but claimed he obtained it from 2008 beginning approximately a m on been to or younger was approximately six feet While E R was Detective Walters the second Fielding by and selected the Fielding another not photographic lineup police officer E R photograph of Desendorf could as select any identification ofE R s in the presence of his mother being questioned shown this During to Desendorf viewing Fielding the person who had robbed him being in the picture as was by the robber E R As lineup was result of a taken into custody DENIAL OF MOTION TO SUPPRESS IDENTIFICATION In his first failing to assignment of grant his motion to suppress 2 victims of the armed robberies were 98 suggestive and that 97 S Ct 2243 error an 53 L the identifications made by the three E R argues the identification analysis of the 3d Ed argues the trial court erred in E R 140 Manson v procedures Brathwaite 432 U S factors and the fact of 1977 a cross racial identification made the likelihood of misidentification great On December 30 2008 Desendorf matter Building in a Fielding general waiting outside the courtroom from the juvenile detention testify to at adjudication hearing and Scullen At area As the three observed E R walk into the unable an were some men courtroom at point they outside the sat scheduled in this the Juvenile Court asked were to wait they courtroom all wearing leg shackles and clothes center Because one of the State adjudication hearing the all was the s witnesses State was obtained a filed on continuance On January behalf of E R the 2009 The motion a motion sought to to suppress identification where the witnesses observed courtroom Only in leg shackles and two of the victims perpetrator a Fielding ofthe armed robberies was suppress any identifications of E R alleged victims during and subsequent to viewing 2 13 the December 30 2008 E R prison uniform and Scullen being escorted Through 5 as staged into the the motion to ultimately identified Desendorfnever identified anyone by the E R as the perpetrator suppress E R that the December 30 2008 argued of his federal and constitutional state viewing was in violation rights Suggestiveness ofIdentification Process As motion general a to suppress 703 D an To suppress identification suggestive out an procedure if the defendant has the burden of matter of was also show there was a result of the identification unduly focused presumed by the the defendant court substantial likelihood of misidentification procedure 898 So 2d 1219 La 4 105 or is procedure suggestiveness of the identification when by the defendant art first prove that the must attention is s on a Code Crim P identification An during the procedure the witness process is proven must defendant a suggestive even La identification identification the defendant However on court proof State Higgins 2003 1980 v 1232 33 cert denied 546 U S 883 a as p 19 126 S Ct 182 163 L Ed 2d 187 2005 A hearing conducted was on the identifications of December 30 2008 from Desendorf they saw E R who had been elicited the E R an Fielding and entering the indicating that after this or district attorney the hearing on was were asked Rather the was the individual by testimony anyone from they recognized asked by defense counsel recognized In response to the defense recognized defendant 6 elicited only testimony regarding the motion to suppress whether he Scullen testified that he was was no office whether from Scullen who the individual who robbed him question was However there s suppress the to that each understood when that date that he viewing they the person who robbed them actual identification during on motion s hearing testimony indicating charged with robbing them police department as At the Scullen courtroom juvenile as E R as counsel the perpetrator s The jurisprudence indicates that when identification results from inadvertent suspect and there is of no indication of Johnson 94 1561 p 7 La 95 2988 La impropriety suggestiveness or the trial suppress witnesses was a 669 So 2d 426 found that the court fortuitous 664 So 2d 141 App 1st Cir 10 6 95 3 15 96 event In viewing and that there of the was no in shackles and observation of a relieve the not whether the identification process circumstances of and prison clothing attention witnesses there observing was a on State 145 writ juvenile by deception was or to the nefarious observe the to requirement suggestive of determining Assuming that the the suspect entering the suggestive because they unduly focused the suspect the v juvenile courtroom still had to in shackles the establish that likelihood of misidentification in the identification procedure 898 So 2d at 1233 Higgins Likelihood The ofIrreparable Misidentification Supreme S Ct 2243 does Court in Manson 2254 53 L Ed 2d 140 not exist a v 1977 identification suggestive pretrial there were out However the inadvertence of the prison clothing suspect does an the motion denying motive in the circumstances that allowed the witnesses juvenile the meetings between the victim and identification will be found both reliable and admissible court denied immediate and definite an held that substantial 116 97 despite the existence of a identification may be an very Brathwaite 432 U S 98 likelihood permissible if irreparable of misidentification Under Manson the factors that determine from the totality of the circumstances whether the suggestiveness presents a courts must substantial likelihood of misidentification view the criminal witness s opportunity witness s degree of attention to 3 at include 1 the time of the crime 2 the accuracy of his 7 examine prior description to the the of the criminal 4 the level of demonstrated certainty at the confrontation and 5 Manson the time between the crime and the confrontation 432 U S at 114 15 97 S Ct at 2253 At the produce to a outset we weapon he identify anyone look good get a the area was lit as note at the perpetrator Fielding a as they arrived the carport where he observed E R floodlight over the driveway and by his attention was well lit streetlight a Moreover witnesses established that E R them the marijuana men As for note and when they declined he he told them orders we was to holding a that the initially approached After empty their pockets to under the able never able was to carport and Scullen stated that the closely Scullen testified that the fact that E R heighten the robber Scullen testified that he first noticed E R porch light walking by the residence testified that he approached them since E R saw him and Desendorf was stopped looking at E R by that Desendorf admitted when he step away he as produced by motion a sensor degree of attention gun only served to testimony of all the them weapon and ordered a the sell to seeking they complied with gathered under area the juvenile s belongings from the ground prior physical description of the suspect provided The was a 5 7 was black male perhaps twenty and clean shaven fifteen at reflects the would like basketball to The line up not police listed on officer or younger photograph ofE the time of this offense Although his height is statement years old the photo play basketball in his future that 8 a the was police 5 6 or black male who indicates he is clean shaven line up the DVD of E R commenting to player R who to s E R after he indicated he E R was not very big for a The factor next to consider misidentification is the level of Because the testified he consider the in only that E R certain was testified that because E R would at occurred him on perpetrator In pointing was February 13 2009 a gun at him during Finally Dr we the identifications were includes the scenario that event identification in a setting such exposure Dr who a cross impacting Malpass on was he that the crime court as the the defense accepted case identified field of his as an expert summaries the witnesses numerous Dr was at ability to issues These expertise racial identification issue the recall the weapon the fact that two witnesses did not make photographic lineup the identification the courtroom a robbery several factors present that would establish unreliable effect of the presence of a were Scullen Malpass testified he reviewed police assistance based provide circumstances of the an note suppress identification to reports photographic lineups witness statements and that there Fielding months after the robbery Roy Malpass Dr experimental psychology areas the to Scullen further testified that E R seven support of the motion Malpass opined of the motion the person who robbed him was of the confrontation 18 2008 and the witnesses identified E R in July on that would at likelihood identifications of E R he took the witness stand as presented testimony from in court forever remember that face winked demonstrated certainty the determining pretrial photographic lineup was not the subject we suppress in repeated the in the delay between the offense and exposure of the witnesses to the defendant in court identification of the defendant the evaluation of the strength following of the identifications done experiments were based on Dr Malpass acknowledged that people who offer averages of groups of people in this area do not offer ultimate opinions on the accuracy ofwitnesses expert testimony Dr Malpass acknowledged on cross examination that it was possible for a witness to look at a photograph in a lineup and identify a picture of someone who had perpetrated a crime against them 3 Dr Malpass testified that the conclusions he determined in his 9 through research the confidence of the individual on the motion the retro respective persuaded by Dr Malpass defense on s there was A trial court misidentification In the record substantial a we likelihood determination of the s identification should be accorded great appeal factfinder as denying not was testimony considering the evidence established We note that in memory the trial court in its role to suppress After effect the identification and his making unless the evidence reveals an weight and will say the cannot irreparable of admissibility of an be disturbed on not abuse of discretion State Johnson v 94 1561 at p 7 664 So 2d at 145 This assignment of error is without merit SUFFICIENCY OF THE EVIDENCE In his second presented against assignment him was of insufficient argues that the evidence E R error sustain to conviction under the a Jackson standard of review In a juvenile adjudication the State doubt that the child committed Ch Code less severe art The burden of 883 of D M appeal proof beyond an a in the reasonable petition La reasonable doubt is adult no State in proceeding 11 07 97 704 So 2d sufficiency of evidence Virginia 443 U S 307 99 S Ct 2781 61 L Ed 2d viewing the evidence in the 97 0628 4 p 1979 Le prosecution v whether La App 1 Cir delinquency light most favorable any rational trier of fact could have found the State the essential elements of the crime to alleged the standard of review for the enunciated in Jackson the act a 789 On 560 delinquent than the burden of proof required in the Interest 786 a beyond must prove cases beyond a See La Code Crim P 10 reasonable doubt is art 821 Further in to proved applicable a juvenile delinquency proceeding an clearly court must review the record wrong in it factual findings is court See La Const review the law and facts appellate appellate constitutionally 5 art 10 B S mandated Accordingly determine if the trial to State in Interest to of D M court an was 97 0628 at pp 4 5 704 So 2d at 789 90 Armed robbery is the taking of anything of value another belonging to from the person of another or that is in the immediate control of another use of force RS or intimidation while armed with dangerous a by La weapon 14 64 A Viewing the evidence in the light the evidence 2008 a against E R establishes that young black male Desendorf approached According he and his companions the juvenile produced a to the prosecution to sell the they shared at on the man was men gun and ordered Desendorf empty their pockets and place the items 18 July as the residence at on Fielding and Scullen Desendorf the young After his offer to shortly before midnight they unloaded groceries from their vehicle 1510 Olive Street favorable most drugs shorter than was declined and Scullen Fielding The three ground to men complied and placed their personal items including cell phones keys and wallets containing bank cards and cash up the items and fled the onto the ground The juvenile picked scene During the investigation Desendorf obtained records showing calls The police recovered Desendorf s made to and from his cell phone phone in the possession of James Robertson never not placed in a match the purchased lineup because at 6 4 tall and Robertson weighing physical description of the robber the cell phone registered review of records of calls placed on to the 11 s photograph 200 pounds cell was he did Robertson claimed to have Desendorf from some kid A phone after the robbery indicated that on at phone statement to was to the phone registered a interviewed approximately hours after the 11 00 The robbery to by the police a m on at I Robertson 35 a m and stated he obtained Saturday July 19 some twelve phone records corroborated Robertson s to verify the E R admitted he possessed police that he initially called his number own worked phone the phone that to led investigation eventually The prior made were Robertson 19 July the calls phone identified was Robertson with whom E R making those calls belonging to the obtaining people Mr Alvin as was to E R there phone known Desendorf In the twelve hours to are associate However E R insisted he outside of a grocery store on several calls the bought the to admitted and E R placed to phone Monday following from a the date of the robbery The State also solicited was E R E R juvenile probation s was on parole parole he wore had at to be monitoring residence and parole monitoring home between 8 00 p device reflected that According on robbery the was device and 6 00 m and returned m the armed officer the time of this offense and at ankle bracelet at 11 00 p the record July an testimony from Stephanie Krygowski who evening at 3 13 a m of a m committed as Krygowski condition of his E R had a curfew and The records of E R July on a to 18 2008 he left his 19 According to before midnight on from a July shortly s 18 2008 On July 24 photographic lineup earlier 2008 as At trial both who robbed them the Fielding selected E R s picture the person who had robbed him less than Fielding night and Scullen identified E R of July 18 2008 12 as a week the individual Based on the rational fact finder Desendorf Fielding say the trial court s foregoing s conclude the evidence would support conclusion that E R and Scullen Based was was on determination that E R commission of these offenses This we the individual who robbed the record evidence was a delinquent as a we cannot result of his clearly wrong assignment of error is without merit JUVENILE DELINQUENCY DISPOSITION AFFIRMED 13 ADJUDICATION AND
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