State Of Louisiana VS Joe Washington
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0401 yl STATE OF LOUISIANA VERSUS JOE WASHINGTON Judgment Rendered November 2 2012 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court Number 03 0290 11 Honorable Louis R Daniel Judge Presiding x Hillar C Moore III Jesse H Bankston Jr Counsel for Appellee State of Louisiana Jaclyn C Chapman Baton Rouge LA Margaret Smith 5ollars Thibodaux LA BEFORE Counsel for Defendant Appellant Joe Washington WHIPPLE McCLENDON AND HIGGINBOTHAM JJ WHIPPLE J The defendant Joe Washington was charged by bill of information with simple burglary a violation of LSA 14 He pled not guilry and following S R 62 a jury trial was found guilty as charged The State subsequently filed a habitual offender bill of information A hearing was held on the matter and the defendant was adjudicated a fourth habitual offender felony The trial court sentenced the defendant to life imprisonment at hard labor without benefit of parole probation or suspension of sentence The defendant now appeals designating two assignments of error We affirm the conviction habitual offender adjudication and sentence FACTS On the night of October 15 2010 Paul Edwards Sr and several of his friends were tailgating at a Scotlandville High School football game Outside the stadium Edwards watched the game from a hill that was in back of the stadium During the fourth quarter Edwards noticed a person later identified as the defendant inside a parked white Chevrolet Tahoe near the hill belonged to Scotlandville High School student Garen Lemon The Tahoe The defendant sitting in the front seat with the driver side door open was rummaging around in s the backseat of the Tahoe Edwards observed the defendant get out of the Tahoe with a book bag and quickly walk toward a wooded area The defendant was dropping items such as books and papers while he was walking The defendant then walked into the nearby woods and stopped and smoked a cigarette Edwards testified at trial that the defendant was wearing a red jacket and a red and blue shirt Edwards also testified that the person the police had taken out of the woods was the same person Edwards had seen in the Tahoe Edwards positively identified the defendant in court as the person he saw in Lemon sTahoe When Edwards first saw the defendant walking away from the Tahoe he 2 pointed the defendant out to his friend Theresa Uriffin Griffin testified at trial that the person Edwards showed her had on jeans and a jacket and was carrying a book bag Griffin called 911 and shortly thereafter the police arrived and apprehended the defendant in the wooded area near the hill The defendant was wearing a red and blue striped shirt but no jacket Two book bags papers notebooks books a watch clothes Nike shoes and a PSP game system were taken from Lemon truck s Police recovered some of the items from the wooded area One of the book bags a school uniform the shoes and the PSP were not recovered No items were found on the defendant Griffin positively identified the defendant in court as the person she saw walking away from the Tahoe carrying a book bag Officer Daniel Iverson with the Baton Rouge Police Department was dispatched to the scene with a description of the defendant Within minutes of arriving Officer Iverson apprehended the defendant in the woods The defendant was handcuffed and detained in the officer patrol unit Officer Iverson did not s personally speak to Edwards but information was relayed to him that Edwards had identified the person in police custody as the same individual he had seen earlier in s Lemon Tahoe The defendant testified at trial that he was fifty years old lived with his six parents and was a 1972 Scotlandville High alumnus He stated that he left his parents house that night and walked to the game After the game he was walking back home and passed the hill where Edwards had been tailgating When the defendant got to Jones Street near the edge of the wooded area he was stopped by the police He was handcuffed and placed in a police unit Several minutes later and after items were found the defendant was arrested The defendant denied going into a vehicle and taking items The defendant had prior convictions for armed robbery simple burglary of a house that was blocks away from the instant 3 simple burglary and several felony thefts At the time of trial the defendant was on parole after serving two halfyears in prison for other offenses one and ASSIGNMENT OF ERROR NO 1 In his first assignment of enor the defendant argues the evidence was insufficient to prove that he was the person seen in the Tahoe The defendant asserts in his brief that while Edwards claimed to have seen him inside of the Tahoe Edwards also tesrified that the interior light of the vehicle never came on The defendant further asserts that the lighting was relatively poor where the burglary took place and that Griffin did not see the Tahoe being burglarized but only observed the person who Edwards had pointed out to her The main thrust of the defendant entire argument however is that the s identification of the defendant at the scene by Edwards and Griffin was unduly suggestive and that there was a substantial likelihood of misidentification After the defendant was placed in a police unit Edwards identified the defendant in a on one show up as the person he had seen in the Tahoe Griffin testified that the person she saw handcuffed the defendant was the same person she had seen near the Tahoe Defendant further challenges the sufficiency of the evidence regarding the witnesses in identification According to the defendant since court his identity was firmly but erroneously established in the minds of Edwards and Griffin these two witnesses showed no hesitation in identifying the defendant in court The presentence investigation xeport indicates that on July 22 2008 the defendant pled guilty to felony theft and simple battery and was sentenced to five years imprisonment at hard labor 4 i In support of his misidentification argument the defendant cites the five factor test in determining the reliability of identification of a suspect discussed in Manson v Brathwaite 432 U 98 114 97 S Ct 2243 2253 53 L Ed 2d 140 S 1977 and Neil v Biggers 409 U 188 199 93 S Ct 375 382 34 L Ed S 200 2d 401 1972 The defendant reliance on these Supreme Court decisions is s misplaced These decisions are concerned with the admissibility not the sufficiency of identification tesrimony Once the identification testimony is introduced into evidence as in the instant matter an analysis under Brathwaite is not required Specifically Brathwaite addresses whether or not pretrial identification evidence should be excluded The issue the Brathwaite Court noted was whether the Due Process Clause compelled the exclusion apart from any consideration of reliability of pretrial identification evidence obtained by a police procedure that was suggestive and unnecessary Brathwaite 432 U at 99 97 S S Ct at 2245 Moreover the defendant herein did not file a pretrial motion to suppress the identifications by the witnesses nor did he object to the admission of identificarion testimony at trial A defendant who fails to file a motion to suppress identification and who fails to object at trial to the admission of the identification testimony waives the right to assert the issue on appeal State v Moodv 2000 0886 La App lst Cir 12 779 So 2d 4 8 writ denied 2001 La 00 22 0213 O1 7 12 803 So 2d 40 See LSA art P Cr C DF 703 703 A 841 LSA E C art 103 State v Wilkerson 261 La 342 259 So 2d 871 1972 See 1 A also State v Bovance 2005 La App 3rd Cir 3 924 So 2d 437 440 1068 06 1 writ denied 2006 La 11 942 So 2d 553 State v Brooks 633 So 2d 1285 06 22 659 663 La App lst Cir 1993 writ denied 94 La 5637 So 2d 0308 94 20 475 The failure to file a motion to suppress identification notwithstanding a conviction based on insufficient evidence cannot stand as it violates due process 5 See U Const amend XIV La Const S art 1 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S Ct 2781 2789 61 L Ed 2d 560 S 1979 See LSA Part 821 State v Ordodi 2006 La 11 Cr C B 0207 06 29 946 So 2d 654 660 State v Mussall 523 Sa 2d 1305 1308 La 1988 The 09 Jackson standard of review incorporated in Article 821 is an objective standard far testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSA 15 provides that the S R 438 factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patomo 2001 La App lst Cir 2585 21 6 02 822 So 2d 141 144 Furthermore when the key issue is the defendant identity as the s perpetrator rather than whether the crime was committed the State is required to negate any reasonable probability of misidentification Positive identification by only one witness is sufficient to support a conviction It is the factfinder who weighs the respective credibilities of the witnesses and this court will generally not guess second those determinations See State v Hu h 2005 La es 0992 06 29 11 943 So 2d 1047 1051 State v Davis 2001 La App lst Cir 3033 02 21 6 822 So 2d 161 163 To support a conviction of simple burglary the 64 State must prove the unauthorized entry of the vehicle and that the intruder entered with the intent to commit a theft or felony therein See LSA 14 State SA R 62 v Jacobs 504 So 2d 817 820 La 1987 The evidence at trial established that the defendant was the person inside the Tahoe without Lemon permission and that the defendant took items from the s Tahoe that did not belong to him Edwards testified that he and 6 some friends were I tailgating on a hill in the back of the stadium During the fourth quarter of the game Edwards noticed someone inside a parked white Tahoe Edwards was twenty to thirty feet from the Tahoe Edwards saw the person a black male sitting in the front seat with the driver door open searching around There was no side interior light in the Tahoe but according to Edwards there was light all around Edwards observed the person get out of the Tahoe with a backpack then walk quickly past Edwards toward the woods Edwards saw that the person was wearing a red jacket and a blue and red shirt Edwards observed the person dropping things as he was walking away from the Tahoe When the person got to the wooded area Edwards noticed that the person stopped there and smoked a cigarette When Edwards had first seen the person leaving the Tahoe Edwards pointed him out to his friend Griffin Griffin similarly testified that while she did not see the person inside the Tahoe she saw a tall black male wearing jeans and a jacket carrying a book bag Griffin described the scene as having light from the interstate and the stadium lights Griffin observed the person walk away She lost sight of him but the person returned and passed by real close to where she was Griffin called 911 and gave a description ofthe person she had seen When the person came back toward Griffin he was no longer carrying the book bag Officer Iverson testified that he responded to the burglary call He was told the suspect was a black male wearing a red and blue striped shirt Officer Iverson described the scene as fairly bright because it was ve rY close to the stadium Accarding to Officer Iverson within minutes of his and other police officers arrival the defendant was apprehended in the wooded area wearing a blue and red striped shirt Another officer had been waiting on the other side of the wooded area in case someone came through there The defendant was the only person found in the wooded area About twenty feet from where the defendant was 7 I apprehended Officer Iverson found a watch on the ground The watch had been in the Tahoe and belonged to Lemon friend s Further inside the woods Lemon s book bag was recovered The defendant was detained and placed in the police unit Griffin testified that the person she saw in handcuffs was the same person she had seen by the Tahoe She identified the defendant in court as the person she had seen that night and later in handcuffs Griffin was shown a picture of the defendant wearing the same red and blue striped shirt She testified that the person in the picture was the same person wearing the same shirt she saw by the Tahoe Similarly Edwards was shown the picture of the defendant and testified that the defendant was the person he saw inside of the Tahoe Further while it does not appear Edwards was taken to the police unit to identify the defendant Edwards testified that he confirmed the identiry of the defendant to the police as the defendant was being taken from the woods Edwards also positively identified the defendant in court When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant own testimony s that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Captville 448 So 2d 676 680 La 1984 The defendant indicated at trial that he did not take anything from the Tahoe However the trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency The trier of fact determination of the weight to be given evidence is s not subject to appellate review An appellate court will not reweigh the evidence to overtum a factfinder determination of guilt State v Taylor 97 La App s 2261 1 st Cir 9 721 So 2d 929 932 We are constitutionally precluded from 98 25 8 acting as a juror in assessing what weight to give evidence in criminal thirteenth cases See State v Mitchell 99 La 10 772 So 2d 78 83 The fact 3342 00 17 that the record may contain evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient See State v Ouinn 479 So 2d 592 596 La App lst Cir 1985 In the absence of internal contradiction or irreconcilable conflict with the physical evidence one witness testimony if believed by the trier of fact is sufficient to s support a factual conclusion State v Hi 2003 La 4 898 So 2d s 1980 OS 1 1219 1226 cert denied 546 U 883 126 S Ct 182 163 L Ed 2d 187 2005 S The jury heard all of the testimony and viewed all of the physical evidence presented to it at trial and notwithstanding any conflicring testimony found the defendant guilty The jury verdict reflected the reasonable conclusion that based s on the physical evidence and the eyewitness testimony the defendant entered s Lemon Tahoe without permission with the intent to commit and in fact committed a theft therein In finding the defendant guilty the jury clearly rejected the defense stheory of misidentification See Captville 448 So 2d at 680 After a thorough review of the recard we find that the evidence negates any reasonable probability of misidentification and supports the jury verdict We are s convinced that viewing the evidence in the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of the hypothesis of innocence suggested by the defendant at trial that the defendant was guilty of the simple burglary See State v Callowav 2007 2306 La 1 1 So 3d 417 418 per curiam 09 21 This assignment of error is without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues his sentence is unconstitutionally excessive Specifically the defendant contends that his life 9 sentence is excessive and that a life sentence under the habitual offender law should not have been imposed without a jury trial A thorough review of the record indicates the defendant did not make or file a motion to reconsider sentence following the trial court imposition of a life s sentence Under LSA arts 881 and 881 the faIlure to make P Cr C E 1 1 A 2 or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal including a claim of excessiveness See State v Mims 619 So 2d 1059 La 1993 per curiam The defendant therefore is procedurally baned from having this assignment of error reviewed because of his failure to file a motion to reconsider sentence after the trial court sentenced him as a habitual offender See State v Chisolm 99 La App 4th Cir 9 771 1055 00 27 So 2d 205 212 writs denied 2000 2000 La 9 798 So 2d 2965 3077 O1 28 106 108 See also State v Duncan 94 La App lst Cir 12 667 So 1563 95 15 2d 1141 l 143 en banc per curiam The defendant further asserts that he should not have been sentenced to life under the habitual offender statute without a jury trial citing Apprendi v New Jersev 530 U 466 120 S Ct 2348 147 L Ed 2d 435 2000 and Blakelv v S Washington 542 U 296 124 S Ct 2531 159 L Ed 2d 403 2004 Neither S Apprendi nor Blakelv addressed the issue of whether a defendant is entitled to a trial by jury in multiple offender proceedings Moreover Apprendi specifically exempted such proceedings by stating that other than the fact of a priar conviction any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt prendi A 530 U at 490 120 S Ct at 2362 It is well settled that a S 2363 multiple offender proceeding is a status rather than a criminal proceeding therefore the right to a jury trial does not apply as a matter of federal or state constitutional law State v McAllister 366 So 2d 1340 1344 La 1978 Neither t0 Apprendi nor Blakelv change this principle State v Leblanc 2004 La App 1032 lst Cir 12 897 So 2d 736 743 writ denied 2005 La 4 04 17 744 0150 OS 29 901 So 2d 1063 cert denied 546 U 905 126 S Ct 254 163 L Ed 2d 231 S 2005 This assignment of error also lacks merit CONVICTION HABITUAL OFFENDER ADJUDICATION SENTENCE AFFIRMED 11 AND
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