Opinion
No. 2009 KA 0596.
September 11, 2009.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT. IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA, TRIAL COURT NUMBER 8-07-736, HONORABLE TODD W. HERNANDEZ, JUDGE.
Hillar C. Moore, III, District Attorney, Monisa L. Thompson, Assistant District Attorney, Baton Rouge, LA, Counsel for Appellee State of Louisiana.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant Joseph L. Mitchell.
BEFORE: CARTER, C.J., GUIDRY, AND PETTIGREW, JJ.
The defendant, Joseph L. Mitchell, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court sentenced the defendant to fifty years imprisonment at hard labor. The defendant now appeals, arguing that the evidence is insufficient to support the conviction. For the following reasons, we affirm the conviction and sentence.
The sentencing minute entry states that the trial court imposed an imprisonment term of fifty-five years. However, the sentencing transcript and criminal commitment state that the term of imprisonment is fifty years. The transcript prevails over the minute entry where there is a discrepancy. State v. Lynch, 441 So. 2d 732, 734 (La. 1983). Thus, the defendant was sentenced to fifty years imprisonment at hard labor. Moreover, while the trial court erred in not restricting parole in accordance with La.R.S. 14:64B, the "without benefits" provision is self-activating. La.R.S. 15:301.1A; State v. Williams, 00-1725, p. 10 (La. 11/28/01), 800 So. 2d 790, 799.
STATEMENT OF FACTS
On or about June 29, 2007, Rosette Davis Beasley was working as a cashier at the North Acadian Food Mart and Deli on 1100 North Acadian Thruway East in Baton Rouge, Louisiana. As Beasley proceeded to prepare the cash register for the next business day, she was approached by a male holding a long, silver knife with polished chrome and wearing black clothing, a black bandana across his face, and a black skull cap. According to Beasley, the assailant leaned over the counter and stated, "Give me the money" and brandished the knife. Beasley stepped back due to the length of the knife. Beasley pressed the no-sale button and told the assailant to take the money. As the assailant was removing the coin tray from the cash register, the store owner, Edna Calvin, came from the back of the store. Beasley informed her of the robbery in progress. After the assailant exited the store, Beasley called the police. At trial, Beasley identified the assailant as the defendant.
ASSIGNMENT OF ERROR
In the sole assignment, the defendant contends there is insufficient evidence to support the conviction. The defendant contends that the detective assigned to the case did not perform a full investigation. The defendant specifically notes that a pretrial identification did not take place, there is no physical evidence linking him to the offense, and his identification card was not dusted for fingerprints. The defendant also notes that the detective did not investigate the possibility that other individuals, specifically repairmen, may have been in the residence where the cashier's till was found on the day of the offense. The defendant notes that Beasley, the sole identifying eyewitness, identified him as the perpetrator four months after the robbery at the preliminary examination, and again at trial. The defendant contends that Beasley's identification is unreliable, claiming that her trial testimony revealed that she was unable to distinguish between the defense counsel and defense co-counsel. The defendant concludes that the State failed to negate any reasonable probability of misidentification.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. Herron, 03-2304, p. 3 (La. App. 1st Cir. 5/14/04), 879 So. 2d 778, 782; State v. Johnson, 99-2114, pp. 3-4 (La. App. 1st Cir. 12/18/00), 800 So. 2d 886, 888, writ denied, 01-0197 (La. 12/7/01), 802 So. 2d 641. The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard of review incorporated in La.C.Cr.P. art. 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides the fact finder must be satisfied the overall evidence excludesevery reasonable hypothesis of innocence. State v. Nevers, 621 So. 2d 1108, 1116 (La. App. 1st Cir.), writ denied, 617 So. 2d 906 (La. 1993); State v. McLean, 525 So. 2d 1251, 1255 (La. App. 1st Cir.), writ denied, 532 So. 2d 130 (La. 1988). When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Smith, 03-0917, p. 5 (La. App. 1st Cir. 12/31/03), 868 So. 2d 794, 799.
Louisiana Revised Statutes 14:64A 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.
Herein, the defendant does not challenge his convictions on the basis that any of the statutory elements were lacking. Rather, the defendant contends the State failed to prove he was the perpetrator. Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Zeno, 99-69, p. 9 (La. App. 5th Cir. 8/31/99), 742 So. 2d 699, 706. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Johnson, 99-2114 at 4, 800 So. 2d at 888. Positive identification by only one witness may be sufficient to support a defendant's conviction. State v. Hayes, 94-2021, p. 4 (La. App. 1st Cir. 11/9/95), 665 So. 2d 92, 94, writ denied, 95-3112 (La. 4/18/97), 692 So. 2d 440.
Beasley worked for the North Acadian Food Mart and Deli for eleven years. Beasley described the store as a "Mom and Pops" store and she knew most of the customers as "neighborhood people." According to Beasley, the defendant entered the store as a new customer two times on the day of the robbery before the robberytook place. She stated that the visits were approximately an hour and fifteen minutes apart. The defendant purchased a beer on the first instance. Beasley stood behind the counter as the defendant stood in front of the counter. Beasley asked the defendant for identification, and he complied. Beasley recalled that in accordance with the defendant's identification, his date of birth is June 12, 1978, and he lived in Plaquemine. The defendant attempted to pay for the beer with a twenty dollar bill, and Beasley asked him if he had any smaller bills. She further explained to the defendant that she did not have change for the twenty dollar bill, that she had just pulled the twenty dollar bills for the day, and that the store would be going to the bank to make a deposit and obtain change for the drawer.
Beasley described the defendant as having "puppy dog eyes" and noted that his hair was combed, although it appeared to be braided on his identification card. Beasley elaborated on the term "puppy dog eyes" as follows:
Well, you know, some people eyes you see the little extra white underneath there? Sad, puppy dog eyes. (Indicating) the beagle, the hound. Little puppy — that's the way I describe it; puppy dog eyes. You can see a little extra white or something underneath there. Almost like a tear forming down underneath there or something.
Beasley talked to the defendant for about ten minutes during the first instance. Beasley is approximately five feet three and one-half inches tall and she described the defendant as "much taller," "between five eight and six feet tall." The defendant left after purchasing the beer.
During the second instance, Beasley was standing outside the store taking a cigarette smoking break when the defendant was walking up Zion Street toward the front of the store. Beasley stated that the defendant's shirt was off, he was holding a black shirt in his hand, and he was wearing black jeans. He told Beasley that he would be back in a little while to give her some more business and asked her for the store's closing time again. Beasley informed the defendant that the store closed at 6:00 p.m. According to Beasley, the defendant was acting "giddish" "like he had gotten high off of that one beer he bought." The defendant walked away from the store, heading south on Acadian Thruway.
Approximately fifteen minutes later, the robbery took place. Beasley testified that she was certain it was the defendant who returned and committed the robbery. She stated that with the bandana across his face and the skull cap on his head, the defendant's "droopy" eyes were pronounced. Beasley also recognized the defendant's voice. Beasley further noted that the skin tone, height, and mannerisms were consistent. Beasley also noted she was able to observe the defendant as he was "scrambling" to remove the coin tray from the cash-register drawer. Beasley testified that the defendant took approximately thirty-six dollars from the store.
Beasley testified that she had been an on-duty officer for the Department of Labor in the Job Corps Program for thirty years before working at the store. She detailed her job descriptions as residential living coordinator, orientation specialist, and recruiter. There were over six hundred residents of the Job Corps Program. To meet the requirements of her job, Beasley became accustomed to studying individual characteristics with particularity. She stated that she continued this pattern with the customers who entered the store. Beasley also testified that she was good at memorizing numbers. During cross-examination, the defense counsel asked Beasley if she had ever met him before, and she stated that he had previously questioned her in court at the pretrial hearing. The defense counsel showed her a portion of the transcript of the pretrial hearing that indicated that she had instead been questioned by the co-counsel. Beasley stated that both of the defense counsels were present and conferred with each other during the questioning.
The transcript for the pretrial hearing was not entered into evidence and is not a part of the instant appeal record.
The store owner, Edna Calvin, also testified. Calvin testified that she was in the kitchen area at the rear of the building at the time of the offense. Calvin looked down the aisle toward the register when she heard coins rattling. She noticed Beasley leaning back and saw someone headed toward the front exit. When Beasley stated that a robbery was taking place and that she was going to call the police, Calvin ran down the middle aisle to the front door. Calvin observed an African-American male with a dark complexion, about five feet nine inches to six feet tall wearing dark clothing and a dark cap, flee from the store down Zion Street, across Acadian Thruway West, into a pathway. Calvin testified that the pathway led to 32nd Street. Calvin did not see the perpetrator's face and was unable to identify him.
Detective Larry Walters of the Baton Rouge Police Department responded to the scene of the instant offense. Beasley provided a description of the assailant and details of the incident. The police received an anonymous tip regarding the location of a suspect fitting the provided description running with a cash register till into a residence on North 31st Street. Detective Walters instructed other officers to respond to the scene. After the crime scene unit arrived at the store, Detective Walters proceeded to the scene where the suspect was observed. Shortly after Detective Walters arrived at the residence and requested assistance, the renter of the residence, Linda Mitchell, arrived. Mitchell allowed Detective Walters and other officers to enter the residence and executed a consent-to-search form. The defendant was not in the residence, but a search of the master bedroom and living room led to the discovery of a pair of black pants on the floor and a dark colored sweatshirt. A black bandana, skull cap, a coin holder from a register till, and the defendant's identification were on an air-conditioning unit in the master bedroom.
As noted in the appeal briefs and indicated in the record, Linda Mitchell is the defendant's spouse.
A pair of black shoes also was found. The officers also found a large butcher knife in the kitchen of the residence in a knife block with the blade facing the opposite direction from the other knives in the block. The knife was photographed but not seized because the officers were not certain if it was the knife described by Beasley.
Fingerprints were lifted from the door of the store and bottom and side of the cash-register till recovered from the residence, but none of the prints were of evidentiary value. Detective Walters was unsure as to whether some of the evidentiary items were tested at the Louisiana State Police Crime Lab for DNA, as he did not follow up on any requests for testing. Detective Walters testified that he did not follow up or seek DNA evidence because he was confident that he already had enough evidence for the case. Detective Walters testified that he believed Mitchell informed him that there were some workers or repairmen at the home on the day in question. Detective Walters did not question Mitchell further or follow up on the possible presence of others at the residence that day. No one was inside the residence when Mitchell allowed the officers to enter the home.
The State presented a black bandana, a black skull cap, black pants, and a photograph of a knife, and Beasley testified that they were consistent with what she observed the day of the robbery. The identification card bearing the defendant's name, presented by the State, had the date of birth and city of residence as recalled by Beasley. While observing the identification card, Beasley noted that the photograph was "slightly off" in comparison to how the defendant looked on the day in question. She reiterated that she could observe the defendant's "puppy dog eyes" in person and that his hair appeared braided on the card but was "neater" on the date of the robbery. She believed it was the same identification card that was presented to her by the defendant on the day of therobbery. Beasley also identified the cash register till or tray as the one stolen from the register she was operating at the time of the robbery.
Where there is conflicting testimony as to factual matters, credibility of witnesses is within the sound discretion of the trier of fact. An appellate court does not reweigh credibility of witnesses when reviewing sufficiency of the evidence. The trier of fact is charged with making credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Thus, a reviewing court may impinge on the fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Davis, 01-3033, p. 3 (La. App. 1st Cir. 6/21/02), 822 So. 2d 161, 163-64. After a careful review of the evidence, we find the State sufficiently negated any reasonable probability of misidentification herein. Beasley had ample time to observe the defendant during the two visits before the robbery and had a keen memory. She memorized information from the defendant's identification card including his date of birth and city of residence. She focused on the defendant's physical characteristics. Beasley was very familiar with the defendant's eyes. She also recognized his attire, his skin tone, and his voice. Her testimony regarding the defendant's identification as the perpetrator was given with great certainty and conviction. The cash-register till and clothing matching the description of the perpetrator's clothing were recovered from Mitchell's residence. Any rational trier of fact could have found proof beyond a reasonable doubt of the elements of the instant offense and the defendant's identity as the perpetrator of the offense. The evidence is sufficient to support the defendant's conviction. The sole assignment of error is without merit.