State of Louisiana v. Isaac Thomas Gee

Judgment rendered May 10, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,030-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

ISAAC THOMAS GEE Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 16-F-002256

Honorable Frederick D. Jones, Judge

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JOHN D. & ERIC G. JOHNSON
LAW FIRM, LLC Counsel for Appellant
By: Eric G. Johnson
Rachel W. Bays

ROBERT S. TEW Counsel for Appellee
District Attorney

SHIRLEY M. WILSON-DAVIS
Assistant District Attorney

*****

Before PITMAN, COX, and MARCOTTE, JJ.

MARCOTTE, J.

This criminal appeal arises from the Fourth Judicial District Court,

Parish of Ouachita, the Honorable Frederick D. Jones presiding. Defendant,

Isaac Thomas Gee, was convicted of second-degree murder, in violation of

La. R.S. 14:30.1. Defendant was sentenced to life imprisonment, to be

served without the benefit of probation, parole, or suspension of sentence.

Defendant now appeals his conviction, as well as the trial court’s decision to

allow his booking photo to be used at trial for purposes of identification. For

the following reasons, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Following a traffic stop on Interstate 20 westbound late in the

morning of August 22, 2016, Issac Gee fled from his vehicle on foot and led

officers on a chase through a brickyard and a wooded area near the

interstate. Gee was spotted leaving the scene of the gruesome, execution-

style killing of Laquintina Qualls in the bathroom of the Central Gas Station

located in West Monroe, Louisiana. Defendant was finally apprehended and

taken into custody following the manhunt.

On October 14, 2016, Gee was charged by bill of indictment with the

second-degree murder of Ms. Qualls, in violation of La. R.S. 14:30.1. A 12-

person jury was impaneled on January 25, 2022, and a four-day trial

commenced. On January 26, 2022, the state filed a motion in limine,

arguing that defendant’s “tidying up” for trial had completely altered his

appearance and would taint the ability of witnesses to identify him at trial.

The state asserted that defendant’s “tidying up” consisted of shaving his

head and beard, and that defendant lost a considerable amount of weight

since the incident five years before. The state sought to use defendant’s

booking photo as a way to depict what he actually looked like at the time of

the offense.

On January 27, 2022, defendant filed a motion in limine and a motion

to suppress the mugshot photograph, arguing that the use of a single booking

photo for purposes of an in-court identification would be unduly suggestive

and presented a substantial likelihood of misidentification. A hearing was

held and the trial court, citing U.S. v. Carillo, 20 F. 3d 617 (5th Cir. 1994),

granted the state’s motion in limine and denied defendant’s motion to

suppress.

The state’s first witness was Shendra Briggs. Ms. Briggs grew up in

the same household as Ms. Qualls and thought of her as a sister. She stated

that Ms. Qualls was 24 years old with a one-year-old daughter and that she

worked full-time as a certified nurse assistant at Rayville Nursing and

Rehabilitation Center while simultaneously studying at Delta Career College

to become a registered nurse. Ms. Briggs stated that Ms. Qualls and Gee

dated off and on since high school, but that at the time of her death, Ms.

Qualls was married to Diontavius Walker, who lived in Houston. She

described the relationship between Ms. Qualls and Gee as “crazy love” and

“very toxic.”

At the time of Ms. Qualls’ death, Ms. Briggs stated that she, along

with her mother and her two children, was living with Ms. Qualls and Ms.

Qualls’ daughter in a one-bedroom apartment in Rayville, Louisiana. Ms.

Briggs stated that on the day Ms. Qualls was murdered, she saw defendant

walking around their apartment complex “look[ing] strange.” Ms. Briggs

testified that she had repeatedly observed defendant hiding or asleep in the

backseat of Ms. Qualls’ Chevrolet Impala, without Ms. Qualls’ consent. Ms.
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Briggs was shown a photograph of Gee and confirmed that he appeared that

way on the day of the murder. She also identified him in the courtroom.

On the night before Ms. Qualls was murdered, Ms. Briggs said that

her phone went dead and she needed to make a call, so she went into Ms.

Qualls’ room to use her cell phone instead. In the process of using Ms.

Qualls’ cell phone, she noticed that Gee had attempted to contact Ms. Qualls

numerous times via text messages and phone calls. Ms. Briggs noted that

Ms. Qualls had Gee’s phone number saved to her phone under the name

“crazy love.”

When she woke up the next morning, Ms. Briggs said that she did not

see Ms. Qualls, but that was of little concern to her because she knew Ms.

Qualls’ nursing shift began early in the morning. Later that morning, Ms.

Briggs was informed that Ms. Qualls had been murdered in a gas station

bathroom.

Sheila Hales was Ms. Qualls’ supervisor at the Rayville Nursing and

Rehabilitation Center and was the last person to talk to Ms. Qualls before

she was killed. When Ms. Hales arrived at work on the morning of August

22, 2016, she noticed Ms. Qualls was not there like she normally was so she

called her. When Ms. Qualls didn’t answer, Ms. Hales stated that she

informed Ms. Briggs’ family because she “felt like something was bad

wrong.” Ms. Hales stated that Ms. Qualls eventually returned her call but

could only say, in a scared voice, “165 Bastrop/Columbia gun to my head,”

before the phone went dead.

Ms. Hales testified that she immediately called the sheriff’s office in

Rayville, Louisiana, to inform them of the startling call she had just

received. After several more unsuccessful attempts to contact Ms. Qualls,
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Ms. Hales eventually received another call from her. During this phone call,

Ms. Hales stated that she could hear a scuffle and a gunshot before the phone

went dead. Ms. Hales stated that she then went to the sheriff’s office and

gave a written statement of her account. Ms. Hales’ written statement was

admitted into evidence.

Patricia Foster is a cashier at the Central Gas Station where Ms.

Qualls was murdered. From her position behind the cash register, she

recalled seeing “a man and a lady” enter the store that day and proceed to the

bathroom. Ms. Foster stated that she heard yelling coming from the

bathroom and a few seconds later heard gunshots. After hearing the

gunshots Ms. Foster testified that she immediately took cover outside of the

store before calling 911.

Travis Ray is an officer with the U.S. Fish and Wildlife Service and

was inside the Central Gas Station when the shooting occurred. Mr. Ray

testified that he routinely stopped at the Central Gas Station, off of the

Cheniere Drew exit on Interstate 20, to get a slice of pizza. Mr. Ray said

that while he was standing at the cash register he saw, through his peripheral

vision, a man and a woman enter the women’s bathroom. He said he then

heard screaming coming from the women’s bathroom area quickly followed

by four gunshots. Mr. Ray said he then immediately went outside to take

cover behind his car in the parking lot. As he was running toward his car, he

saw a black male wearing a black shirt exit the store, and while positioned

behind his car, he saw the same man climb into a white Chevrolet Impala

parked in front of the store.

When the man reversed the car to exit the parking lot, Mr. Ray said he

got a clear view of him and testified that he had a “crazy, enraged look” in
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his eye. Mr. Ray then recorded the license plate number of the white Impala

and called the sheriff’s office with that information. He also informed the

sheriff’s office that the white Impala was headed west on Interstate 20. Mr.

Ray was able to identify Gee in the courtroom as the same man he saw exit

the store and drive off in the Impala on the day of the shooting. Mr. Ray

was shown video surveillance footage and photographs taken from the store

that day which confirmed his account and which were admitted into

evidence.

Matthew Nolin was employed as a maintenance worker by Central

Gas Station and was in the store changing lightbulbs on the day of the

shooting. While in the store, Mr. Nolin said he heard a woman yelling “at

the top of her lungs” from the bathroom area followed by a series of

gunshots. After hearing the gunshots, Mr. Nolin said he saw a black male in

a dark shirt walk out from the bathroom area, stop to look at everybody, then

walk out the front door. He said he then saw a white car drive off from the

store. After seeing the white car drive away, Mr. Nolin said he opened the

stall door in the women’s bathroom and found Mrs. Qualls lying hunched

over on the floor with “blood everywhere.” Mr. Nolin was shown a

photograph, which was admitted into evidence, of the gruesome scene he

encountered when he opened the stall door, and he confirmed that it showed

what he saw that day.

Corporal George Canales (“Cpl. Canales”) works in the patrol

division with the Ouachita Parish Sheriff’s Office and was one of the first

officers at the Central Gas Station after the shooting. Cpl. Canales arrived to

find a “pretty chaotic” scene and quickly began to secure the area and take

witness statements. From the surveillance video Cpl. Canales was able to
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view at the store, he saw a white Chevrolet Impala pull into the parking lot, a

black male and female get out and come inside the store, then only the male

leave in the same Impala.

Sergeant Johnny Holyfield (“Sgt. Holyfield”) is a patrol officer with

the Ouachita Parish Sheriff’s Office who responded to the crime scene on

August 22, 2016. When Sgt. Holyfield arrived on the scene, he said he

entered the women’s bathroom and found Ms. Qualls lying on the floor in

one of the stalls with gunshot wounds to the head. Sgt. Holyfield was shown

a series of pictures admitted into evidence depicting the crime scene and he

confirmed the pictures showed what he saw that day.

Renee Smith was the crime scene coordinator for the Ouachita Parish

Sheriff’s Office at the time of the incident. She testified concerning her

analysis of the crime scene. Ms. Smith analyzed the women’s bathroom

stall where the shooting occurred and found that Ms. Qualls suffered

multiple gunshot wounds to the head. Ms. Smith said that she observed

brain matter on the top of Ms. Qualls’ hair, as well as blood dripping from

her face and the top of her head. Ms. Smith stated that she noticed a cell

phone positioned behind Ms. Qualls’ body. She said she also found a bullet

hole in the wall directly behind Ms. Qualls’ body with high velocity blood

splatter around the hole. Ms. Smith was able to retrieve the bullet from the

hole and she confirmed that the bullet admitted into evidence was the same

one she retrieved from the hole in the wall on the day of the incident. Ms.

Smith testified that the absence of shell casings recovered from the crime

scene led her to believe that a revolver was used in the killing of Ms. Qualls.

Jonathan Chapman is a trooper with the Louisiana State Police. On

August 22, 2016, he was traveling eastbound on Interstate 20 near Ruston,
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Louisiana, when he received an announcement to be on the lookout

(“BOLO”) for a white Chevrolet Impala headed westbound on Interstate 20.

Trooper Chapman then saw a vehicle matching that description and turned

around to catch up to it and pull it over. Once he was able to verify the

license plate number announced on the BOLO, he said he activated his lights

to initiate a traffic stop. Trooper Chapman testified that when the driver of

the white Impala pulled over to the side of the interstate and exited the

vehicle, he saw a chrome handgun in the driver’s right hand.

Trooper Chapman said that he then saw the driver throw an object

under the car and take off running in a northerly direction. Trooper

Chapman described the driver as a black male wearing a black shirt. He and

another state trooper then chased the suspect on foot through the Ruston

brickyard near the interstate, where they eventually lost sight of him.

Trooper Chapman radioed for backup and returned to the white Impala to

secure it for the crime scene investigators. After the suspect was

apprehended and returned to the Impala, Trooper Chapman saw him and

recognized him as the same man he saw exit the vehicle and flee on foot.

Despite seeing the suspect throw what appeared to be a handgun under the

car before running away, Trooper Chapman testified that no handgun was

recovered from under the car.

Sergeant Justin Stephenson (“Sgt. Stephenson”) is a patrol officer

with the Louisiana State Police. On August 22, 2016, he was traveling on

Interstate 20 when he spotted a white Chevrolet Impala that matched the

description on the BOLO announcement. Sgt. Stephenson said he radioed

the location of the Impala to Trooper Chapman, who initiated the traffic

stop. Sgt. Stephenson testified that he then saw a black male wearing a
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black shirt exit his vehicle with what appeared to be a chrome handgun in

his right hand. He said he then gave chase when the black male fled the

scene on foot northbound up a hill. Sgt. Stephenson testified that he and

other officers eventually apprehended the man near a wooded lot close to

Interstate 20. Sgt. Stephenson identified Gee in the courtroom as the same

man he saw exit the white Impala that day.

Lieutenant Cody Custer (“Lt. Custer”) works for the Ouachita Parish

Sheriff’s Office and was part of the team of officers that apprehended Gee

on the day of the incident. Lt. Custer testified that he tackled Gee when he

saw him running out of the woods near Interstate 20 and found live revolver

ammunition on him. Lt. Custer then identified Gee in the courtroom as the

same man he apprehended that day.

Dr. Frank Peretti, accepted as an expert in forensic pathology,

performed an autopsy on Ms. Qualls. Dr. Peretti stated that her cause of

death was three gunshot wounds – one above her left eyebrow and two to the

back of the head – at close range. Dr. Peretti noticed stippling above the

victim’s left eyebrow, indicating the gun was fired three to five inches from

Ms. Qualls’ head. Dr. Peretti testified that any one of the three shots fired at

Ms. Qualls would have been fatal. Dr. Peretti’s autopsy report detailing his

findings was admitted into evidence.

Brian Boney was an investigator with the Ouachita Parish Sheriff’s

Office at the time of the incident. Mr. Boney interviewed witnesses at the

Central Gas Station before traveling to see Gee once he had been taken into

police custody. Mr. Boney identified Gee in the courtroom as the same man

he saw in police custody on the day of the incident.

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Officer Darrell Johns (“Off. Johns”) is an officer with the Ouachita

Parish Sheriff’s Office who stayed with the white Impala on the side of the

interstate while other officers chased down Gee on foot. Off. Johns stated

that he secured the area around the vehicle, inspected it, and found what

appeared to be blood droplets on the steering wheel and the driver’s side

door panel. Off. Johns was shown a series of photographs of the Impala and

confirmed that they depicted the same vehicle he secured on the day of the

incident.

Officer Christopher Thirdkill (“Off. Thirdkill”) is a patrol supervisor

with the Morehouse Parish Sheriff’s Office. Off. Thirdkill took the 911 call

from Ms. Qualls on the day of her murder. Off. Thirdkill testified that at

8:52 a.m. on August 22, 2016, a female called 911 and stated she was at the

E-Z Mart in Bastrop, Louisiana. Off. Thirdkill noted that she said a man had

a gun and that she seemed in distress.

Sergeant Michael McClain (“Sgt. McClain”) is an investigator with

the Ouachita Parish Sheriff’s Office assigned to the violent crimes unit.

When Sgt. McClain arrived at the crime scene, he began reviewing

surveillance video footage from the store before and after the shooting. The

surveillance video was played for Sgt. McClain in court and he explained

what it showed. Sgt. McClain testified that the video showed a white Impala

pull into and park in a spot in front of the Central Gas Station; Ms. Qualls

exited the vehicle from the driver’s side and Gee exited from the passenger

side. He said the video then showed Ms. Qualls walking with a limp inside

the store while Gee was behind her in an escort position. Approximately

one minute later, Sgt. McClain testified that the video showed one customer

fleeing from the store before Gee came out of the store alone and climbed
9

into the driver’s seat of the Impala. Sgt. McClain also testified that he

retrieved a 911 call from the Morehouse Parish Sheriff’s Office. In the 911

call, Sgt. McClain said that he heard Ms. Qualls state that she was at the E-Z

Mart in Bastrop, Louisiana. He heard Ms. Qualls say that defendant was

pumping gas, and he heard her repeatedly ask for help. The state rested

following Sgt. McClain’s testimony.

The defense then called its first and only witness, Lieutenant Miranda

Rogers (“Lt. Rogers”). Lt. Rogers is an investigator with the Ouachita

Parish Sheriff’s Office. On the day of the incident, she interviewed the store

manager, Winona “Sue” Hayden, who told her that she saw a black male

wearing a black shirt in the woman’s bathroom with Ms. Qualls. Lt. Rogers’

interview with Ms. Hayden was recorded, and after defense counsel played

the interview for the jury, defense counsel tried to elicit testimony from Lt.

Rogers that Ms. Hayden had actually told her that the assailant was wearing

a white shirt. Lt. Rogers, however, maintained that she heard Ms. Hayden

describe the assailant as a black male wearing a black shirt. The state noted

that Ms. Hayden was unable to testify at trial due to health issues. The

defense rested following Lt. Rogers’ testimony.

On January 29, 2022, after a one-hour deliberation, the jury returned a

unanimous verdict of guilty as charged to second-degree murder, and the

trial judge ordered a presentence investigation report. On April 5, 2022, Gee

was sentenced to mandatory life imprisonment without benefit of probation,

parole, or suspension of sentence. Gee now appeals.

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DISCUSSION

Sufficiency of the Evidence

Appellant argues that there was insufficient evidence presented at trial

to convict him of second-degree murder. When issues are raised on appeal

contesting the sufficiency of the evidence and alleging one or more trial

errors, the reviewing court should first determine the sufficiency of the

evidence. State v. Hearold, 603 So. 2d 731 (La. 1992). Appellant’s

argument is that viewing the evidence in the light most favorable to the

prosecution, a rational trier of fact would not have concluded that the state

proved the essential elements of the crime beyond a reasonable doubt.

Appellant asserts that there were discrepancies in the testimony and a lack of

direct evidence placing him in the women’s bathroom at the time of Ms.

Qualls’ murder. Appellant’s position is essentially that the circumstantial

evidence presented at trial did not exclude every reasonable hypothesis of

his innocence. Defendant asks that his conviction be overturned and his

sentence vacated.

The state argues that the evidence presented at trial overwhelmingly

supports defendant’s conviction for second-degree murder. The state asserts

that, viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact would have easily concluded that the state proved the

essential elements of second-degree murder beyond a reasonable doubt and

to the exclusion of every reasonable hypothesis of defendant’s innocence.

The state points out that the video surveillance from the Central Gas Station

supports the witness testimony that Gee and Ms. Qualls entered the store and

went into the women’s bathroom together, that screaming was heard

followed by four gunshots, and that Gee then left the store and drove off in
11

Ms. Qualls’ vehicle before finally being taken into custody after a manhunt

near Interstate 20. The state asks this court to affirm Gee’s conviction and

sentence.

The Louisiana Supreme Court has set forth the following standard of

review of the sufficiency of the evidence:

When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781, 61 L. Ed. 2d. 560 (1979). Under this standard, the
appellate court “must determine that the evidence, viewed in the
light most favorable to the prosecution, was sufficient to
convince a rational trier of fact that all of the elements of the
crime had been proved beyond a reasonable doubt.” State v.
Neal, 00-0674, (La. 6/29/01) 796 So. 2d 649, 657, citing State
v. Captville, 448 So. 2d 676, 678 (La. 1984).

State v. Brown, 03-0897, p. 22 (La. 4/12/05), 907 So. 2d 1, 18.

Evidence may be either direct or circumstantial. State v. Jacobs, 07-

887 (La. App. 5 Cir. 5/24/11), 67 So. 3d 535, writ denied, 11-1753 (La.

2/10/12), 80 So. 3d 468. We note that, whether the conviction is based on

direct evidence or solely on circumstantial evidence, the review is the same

under the Jackson v. Virginia standard. State v. Williams, 33,881 (La. App.

2 Cir. 9/27/00), 768 So. 2d 728, writ denied, 00-99 (La. 10/5/01), 798 So. 2d

963, citing State v. Sutton, 436 So. 2d 471 (La. 1983). Circumstantial

evidence is where the main fact can be inferred, using reason and common

experience, from proof of collateral facts and circumstances. Id. Where the

conviction is based on circumstantial evidence, in order to convict,

“assuming every fact to be proved that the evidence tends to prove, it must

exclude every reasonable hypothesis of innocence.” La. R.S. 15:438.

In State v. Chism, 436 So. 2d 464, 469 (La. 1983) (citations omitted),

the supreme court discussed the use of circumstantial evidence, stating:

12

Circumstantial evidence involves, in addition to the assertion of
witnesses as to what they have observed, a process of
reasoning, or inference by which a conclusion is drawn. Like
all other evidence, it may be strong or weak; it may be so
unconvincing as to be quite worthless, or it may be irresistible
and overwhelming. There is still no man who would not accept
dog tracks in the mud against the sworn testimony of a hundred
eye-witnesses that no dog passed by. The gist of circumstantial
evidence, and the key to it, is the inference, or process of
reasoning by which the conclusion is reached. This must be
based on the evidence given, together with a sufficient
background of human experience to justify the conclusion.

Consequently, before a trier of fact can decide the ultimate question of

whether a reasonable hypothesis of innocence exists in a criminal case based

crucially on circumstantial evidence, a number of preliminary findings must

be made. State v. Fontenot, 14-835 (La. App. 3 Cir. 3/18/15), 160 So. 3d

609, writ denied, 15-0788 (La. 3/14/16), 189 So. 3d 1065. In addition to

assessing the circumstantial evidence in light of the direct evidence, and vice

versa, the trier of fact must decide what reasonable inferences may be drawn

from the circumstantial evidence, the manner in which competing inferences

should be resolved, reconciled or compromised; and the weight and effect to

be given to each permissible inference. Id. From facts found from direct

evidence and inferred from circumstantial evidence, the trier of fact should

proceed, keeping in mind the relative strength and weakness of each

inference and finding, to decide the ultimate question of whether this body

of preliminary facts excludes every reasonable hypothesis of innocence. Id.

Relevant to this case, second-degree murder is “the killing of a human

being ... [w]hen the offender has a specific intent to kill or to inflict great

bodily harm.” La. R.S. 14:30.1(A)(1). Specific intent is that state of mind

which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to

13

act. La. R.S. 14:10(1). Specific intent may be inferred from the

circumstances surrounding the offense and the conduct of the defendant.

State v. Bishop, 01-2548 (La. 1/14/03), 835 So. 2d 434. Specific intent to

kill may also be inferred from the extent and severity of the victim’s injuries.

State v. Bull, 53,470 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1175, writ denied,

20-00797 (La. 12/22/20), 307 So. 3d 1040. Furthermore, the discharge of a

firearm at close range and aimed at a person is indicative of a specific intent

to kill or inflict great bodily harm upon that person. State v. Dooley, 38,763

(La. App. 2 Cir. 9/22/04), 882 So. 2d 731, writ denied, 04-2645 (La.

2/18/05), 896 So. 2d 30.

While there was no one who said they actually saw defendant pull the

trigger, the circumstantial evidence was so overwhelming that the jury was

able to find defendant guilty beyond a reasonable doubt of second-degree

murder. There was ample eyewitness testimony that defendant entered the

Central Gas Station with Ms. Qualls, that the two of them went to the

women’s bathroom area, that screaming and gunshots were heard from the

women’s bathroom area, that defendant left the store alone before driving

away in Ms. Qualls’ vehicle, and that defendant then fled on foot from

police officers after having been pulled over.

The jury also saw the surveillance video from the Central Gas Station

which supported the witness testimony. Furthermore, defendant’s specific

intent can be inferred from the fact that Ms. Qualls was shot three times in

the head from a very close range. We find the evidence incriminating

defendant compelling such that it excludes every reasonable hypothesis of

defendant’s innocence. Accordingly, this assignment of error is without

merit.
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Admissibility of the Booking Photograph

Appellant asserts that the trial court’s denial of his motion to suppress

the introduction of a single booking photo used for purposes of in-court

identification constituted an abuse of discretion. Appellant argues that the

use of such a photo at trial was unduly suggestive and presented a substantial

likelihood of misidentification. Appellant asserts that not only are single

photographs (as opposed to a multiple photo “lineup”) highly suggestive,

this suggestiveness is exacerbated when the source is a booking photo.

Defendant argues that since the trial court abused its discretion in admitting

an impermissibly suggestive photo, a new trial is warranted.

The state argues that the trial court did not err in granting the state’s

motion in limine and denying defendant’s motion to suppress because

defendant’s appearance drastically changed over a five-year period, thus it

was necessary to introduce the booking photo so that witnesses would be

able to identify the person they saw at the time of the incident. The state

argues that the introduction of defendant’s booking photograph was properly

admitted under the three-part test for determining the admissibility of

mugshots outlined in United States v. Carillo, supra.

To suppress an identification, the defendant must prove the procedure

used was suggestive and that the totality of the circumstances presented a

substantial likelihood of misidentification. State v. Sparks, 88-0017 (La.

5/11/11), 68 So. 3d 435, cert. denied, 566 U.S. 908, 132 S. Ct. 1794, 182 L.

Ed. 2d 621 (2012); State v. Martin, 595 So. 2d 592 (La. 1992); State v. West,

561 So. 2d 808 (La. App. 2 Cir. 1990), writ denied, 566 So. 2d 983 (La.

1990). Even if suggestiveness is proven by the defendant, it is the likelihood

of misidentification, and not the mere existence of suggestiveness, which
15

violates due process. State v. Holmes, 05-1248 (La. App. 4 Cir. 5/10/06),

931 So. 2d 1157.

The trial court found that the state’s use of defendant’s booking

photograph for purposes of in-court identification was not unduly

suggestive. A trial judge’s determination on the admissibility of an

identification should be accorded great weight and will not be disturbed on

appeal unless the evidence reveals an abuse of discretion. State v. Bickham,

404 So. 2d 929 (La. 1981). In United States v. Carillo, supra, the U.S. Fifth

Circuit used a three-part test for determining the admissibility of mugshots:

(1) the government must have a demonstrable need to introduce the

photographs; (2) the photographs must not imply that the defendant has a

criminal record; and (3) the manner of introduction at trial must not draw

attention to the source or implications of the photographs.

The first part of the three-part test from Carillo requires the

government to have a demonstrable need to introduce the booking

photograph. In this case, the state demonstrated this need by showing the

degree to which defendant’s appearance had changed since the time of the

offense. In the five years since the incident, defendant had gone from a big,

burly, hairy individual to a thin, bald, shaved one. The witnesses saw and

would remember defendant as he appeared on the day of the incident. After

comparing defendant’s booking photograph with how he appeared at trial,

the trial court was persuaded of the need to introduce the booking

photograph. Since defendant’s appearance had changed so drastically since

the time of the offense, the state demonstrated its need to introduce his

booking photograph.

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The second part of the Carillo test mandates that the photograph not

imply that the defendant has a criminal record. In this case, there is nothing

out of the ordinary about defendant’s booking photograph. It appears to be a

regular photograph with a standard blue background commonly used in

government-issued identification documents, such as driver’s licenses or

passports.

In United States v. Torres-Flores, 827 F. 2d 1031 (5th Cir. 1987), the

U.S. Fifth Circuit concluded the jury could have realized that the photo was

a mugshot where the measuring tape was visible in the background and the

government “inartfully” taped over the police notes on the bottom on the

photo. Here, however, no measuring tape or police notes were visible.

Simply put, the photo was that of a standard picture from which no

implications or assumptions could be made in viewing it.

The third part of the Carillo tripartite test requires that the manner of

introduction of the photo not draw attention to the source or implications of

the photo. During the trial, the photo was shown to one lay witness, Shendra

Briggs, and one law enforcement officer, Trooper Justin Stevenson. The

testimony of each is as follows:

From Ms. Briggs:

Q. What’s this photograph, what’s this a photograph of?

A. Isaac, Isaac Gee.

Q. And does this picture depict how you saw him?

A. Yes.

Q. Like in August 2016?

A. That’s the way he looked.

Q. And is this the picture of the same individual that’s sitting over
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there right now?

A. Yes ma’am.

From Trooper Stevenson:

Q. I want to show you what’s being offered and introduced as
State’s Exhibit 1. Can you identify that photograph?

A. Yes ma’am.

Q. Is that how he appeared on the day he was taken into custody?

A. Yes ma’am, the same individual.

It is difficult to see how any implications can be drawn from this line

of questioning other than that the picture showed defendant as he appeared

at the time of the incident. Moreover, the manner of introduction of the

photo did not draw attention to the source or any implications of the photo.

Accordingly, the state satisfied the test under Carillo for admitting the

booking photograph into evidence. The photograph was not unduly

suggestive nor did it create a substantial likelihood of misidentification.

Given the importance of the evidence and the success in disguising the

source, the trial court did not abuse its discretion in admitting the

photograph, and we see no grounds for a new trial by virtue of its

admittance.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are

affirmed.

AFFIRMED.

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