State of Louisiana v. Jeffery Lee Guillory

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-1175

STATE OF LOUISIANA

VERSUS

JEFFERY LEE GUILLORY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 119186
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and James T. Genovese, Judges.

AFFIRMED WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Jeffery Lee Guillory

Michael Harson
District Attorney - Fifteenth Judicial District
Alan P. Haney - Assistant District Attorney
Post Office Box 4308
Lafayette, Louisiana 70502
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

Jeffery Lee Guillory
#126268, Death Row C.C.R.-E-5
Louisiana State Prison
Angola, Louisiana 70712
DEFENDANT/APPELLANT: In Proper Person

GENOVESE, Judge.

In this criminal case, Defendant, Jeffery Lee Guillory, appeals his convictions

by jury of attempted second degree murder and second degree robbery, alleging that

the trial court erred in denying his motion to suppress. Defendant also appeals his

sentences on both convictions, alleging excessive sentences. For the following

reasons, we affirm Defendant’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On May 20, 2008, the State filed a bill of information charging Defendant with

one count of second degree robbery, a violation of La.R.S. 14:64.4, and two counts

of unauthorized use of an access card, violations of La.R.S. 14:67.3. However, the

State filed an amended bill of information on January 4, 2010, adding one count of

attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1.

Defendant filed a motion to suppress which was heard and denied by the trial

court on March 2, 2010. The State then opted to proceed against Defendant with the

charges of attempted second degree murder and second degree robbery. After a jury

trial, the jury found Defendant guilty as charged on both counts.

Defendant filed a motion for new trial which was heard and denied by the trial

court on March 15, 2010. The court then sentenced Defendant to fifty years at hard

labor on his conviction of attempted second degree murder and a concurrent term of

forty years at hard labor on his conviction of second degree robbery.

Defendant appeals his convictions and sentences, assigning two errors through

counsel and one error pro se. Defendant’s pro se error is included in the assignments

of error by his counsel.

On December 29, 2007, the victim, Johnnie Martinez, was heading home on

a local bus in Lafayette, Louisiana, after finishing a shift at her job. At approximately

5:55 p.m., she got off the bus and headed toward a wooded trail that led to a nearby

Walmart. A male individual approached her and asked for bus fare. As she started

to give him some change, he punched her and dragged her into the woods. The victim

fought back, but the individual overpowered her. Her left eye began swelling shut,

and she fell to the ground. After the individual delivered more punches to the victim,

he choked her. The victim played dead, thinking and hoping the individual would

stop beating her. The individual then left the scene with her purse, which contained

cash and an ATM card.

After the victim was helped by a “good Samaritan,” she was taken to the

hospital, and a police investigation ensued. Upon her release from the hospital, the

victim realized her ATM card was being used. Police obtained surveillance footage

from an ATM in Baton Rouge. A detective showed a still image from that footage

to the victim, and she identified the man in the picture as her assailant. The man in

the surveillance footage in Baton Rouge was Defendant. Later, she also identified

Defendant in a photographic line-up.

ASSIGNMENTS OF ERROR

In brief, counsel for Defendant lists the following two assignments of error:

1. The Trial Court erred in denying Jeffery Lee Guillory’s
Motion to Suppress Photographic Lineup.

2. The Trial Court erred in imposing excessive sentences.

Defendant submitted a pro se brief containing only one assignment of error,

virtually the same error as that listed in Assignment of Error Number 1 by his

appellate counsel. They will be addressed jointly as one assignment of error.

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ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are two errors patent.

First, we note that the record indicates that Defendant was sentenced

immediately after his motion for new trial was denied by the court. Louisiana Code

of Criminal Procedure Article 873 requires that there be a twenty-four-hour delay

between the denial of a motion for new trial and the imposition of sentence.

However, defense counsel expressly waived the delay required by La.Code Crim.P.

art. 873 when he announced that they were ready for sentencing. This court has

found an express waiver occurs when defense counsel responds affirmatively when

the trial court asks if he is ready for sentencing. See State v. Williams, 01-998

(La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d

59.

Secondly, we note that Defendant was given incorrect information regarding

the time limitation for filing an application for post-conviction relief. At sentencing,

the trial court advised the Defendant, “You have two (2) years from this date, sir, to

file any Post Conviction Relief Petition, the date that your conviction becomes final

[sic].” Louisiana Code of Criminal Procedure Article 930.8 provides that Defendant

has two years after the conviction and sentence become final to seek post-conviction

relief. Therefore, we direct the trial court to inform Defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within

thirty days of the rendition of this opinion and to file written proof in the record that

the Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),

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903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NO. 1 (which includes
Defendant’s pro se Assignment of Error)

In defense counsel’s brief and Defendant’s pro se brief, it is argued that the

trial court erred by denying Defendant’s motion to suppress. Specifically, Defendant

contends that the identification procedure was suggestive, and thus, there was a

substantial likelihood of misidentification. He notes that the victim knew that the

first photograph a detective showed her depicted someone who had used her ATM

card. Further, Defendant argues that viewing the lone photograph in advance of the

photographic line-up tainted the victim’s identification of his photograph in said

line-up.

A trial court’s ruling on a motion to suppress will not be reversed absent an

abuse of that discretion. State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, cert.

denied, __ U.S. __, 129 S.Ct. 143 (2008).

Louisiana courts have stated: “The display of a single photograph of defendant

rather than an array of photographs depicting different individuals has repeatedly

been held to be improper. State v. McLeland, 456 So.2d 633 (La.App. 2nd Cir.1984),

writ denied, 461 So.2d 312 (La.1984).” State v. Hensley, 608 So.2d 664, 669

(La.App. 3 Cir. 1992), writ denied, 613 So.2d 972 (La.1993). “The Supreme Court

of the United States has noted that single photograph identifications should be viewed

in general with suspicion. Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967,

970-71, 19 L.Ed.2d 1247 (1968).” State v. Martin, 595 So.2d 592, 595 (La.1992).

However, this is not simply a single-photograph identification case. In the

instant case, the single-photograph identification was followed up with a subsequent

photograph identification line-up. According to the facts in this case, the

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single-photograph identification does not necessarily invalidate the subsequent

identification via the photograph line-up. Both parties discuss State v. Rosette,

94-1075 (La.App. 3 Cir. 3/22/95), 653 So.2d 80, which quoted the following

language from another case:

Moreover, defendant would be entitled to no relief under the
circumstances even if we were to accept as true his argument that the
identification procedure was suggestive.

Assuming a suggestive identification procedure,
courts must look to several factors to determine, from the
totality of the circumstances, whether the suggestive
identification presents a substantial likelihood of
misidentification. These factors were initially set out in
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382,
34 L.Ed.2d 401 (1972), and approved in [Manson v.
Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977)]. They
include: (1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the witness’s degree
of attention; (3) the accuracy of his prior description of the
criminal; (4) the level of certainty demonstrated at the
confrontation; and (5) the time between the crime and the
confrontation. Id. 432 U.S. at 114, 97 S.Ct. at 2253.
“Against these factors is to be weighed the corrupting
effect of the suggestive identification itself.” Id.; see also
State v. Lowenfield, 495 So.2d 1245 (La.1985), cert.
denied, 476 U.S. 1153, 106 S.Ct. 2259, 90 L.Ed.2d 704
(1986); State v. Prudholm, 446 So.2d 729 (La.1984); State
v. Winn, 412 So.2d 1337 (La.1982).

State v. Martin, 595 So.2d 592, 595 (La.1992). In other words, even
where an identification is considered suggestive it is usually still
necessary to evaluate the likelihood of misidentification. It is only
where the identification violates both of these tests that a defendant’s
right to due process has been violated. Manson v. Brathwaite, 432 U.S.
at 2253, 97 S.Ct. at 114; State v. Guillot, [353 So.2d 1005, (La.1977)].

State v. Duncan, 93-1384, pp. 4-5 (La.App. 3 Cir. 4/6/94), 635 So.2d 653, 655-56,

writ denied, 94-1067 (La. 10/28/94), 644 So.2d 649.

The State argues that the single-photograph identification was not suggestive

because the detective showed it to the victim for the sole purpose of determining

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whether the man in the photograph was authorized to use her ATM card. It also

argues that the detective had to show the lone photograph to her for identification

purposes because he did not know who the man in the picture was.

In this case, the victim had reported the crime, and the detective had obtained

photographs of a man using her ATM card in Baton Rouge. Since the police knew

a robbery had occurred, there was little chance that the man in the pictures was

authorized to use the ATM card. The detective was also able to compose a

six-photograph line-up within three hours of showing the single photograph to the

victim, so there does not appear to be a compelling time element at issue. Also, the

victim’s identification of the man in the picture as her attacker did little to actually

identify him, as evidenced by the detective’s testimony in the following colloquy

from the motion to suppress hearing shows:

Q. Okay. The ATM photo was shown first, and then at that point
when you showed it to her and she identified that person in the photo as
the person that attacked her, at that point did you know who the person
was?

A. No.

Q. No, okay. How did you learn who this person was?

A. I left from her house and went to the Sheriff’s Department, the
Warrant Division, and I spoke with at that time [sic] Sgt. Dale Thomas.
They know a lot of people. So I figured that was my best bet, to talk to
him; showed [sic] it to him. He didn’t know who it was. He told me he
would go to the shelters and get on the street and see if he could identify
who that person was.

From there I went back to the police department, got up there and
started showing the photo on the second floor, which is the detective
floor, and Sgt. Cormier looked at it and told me that he had previously
dealt with an individual who should have this information.

So I was like, okay. And he kind of gave me a little rundown. So
I went back and pulled my file. When I pulled my file, I pulled a picture
out that I had back then, placed it next to the photo of the ATM. It was

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him.

So at that time I was able to at least get a name and the
information I need[ed; I] submitted the form immediately for the photo
lineup, and that’s how I actually got his name and information.

Q. Now, are you aware of how these photo lineups are made? I
mean, what’s the procedure in making it?

A. To my knowledge -- I never put one together. But basically they
take the information we give them on the form, that we submit, they pull
that person. At that time the database goes through probably hundreds
of thousands of people that were arrested with similar features; whether
they’re bald, it’s going to be six (6) pictures of bald men. If they’re
black, obviously they’ll be black; white, whatever; facial hair.

They try to match up five (5) other people to put in that lineup
that are very similar to the person that you submit. And then we also
can look at that lineup when we get there. And if we don’t like it, if it’s
not close enough, you’ve got somebody you know that [sic] that’s going
to make it difficult to have a good lineup, you can take them out[,] and
they can put somebody else in there so to make it as close as possible.

Q. Okay. And as far as you know that was done; that’s what would
have been done in this case.

A. Yes.

MR. HANEY: I have no further questions, Judge.

RECROSS-EXAMINATION

BY MR. MCCANN:

Q. Detective, would it be fair to say that instead of identifying the
ATM photograph as the ATM photograph of a person that was using
Ms. Martinez’s card, you could have said, “This is a generic photograph
that I came in contact with. Does this person look familiar to you?”

Couldn’t you have done that?

A. Yeah, I guess I could have.

MR. MCCANN: Thank you very much.

That’s all I have, Your Honor.

At trial, the detective acknowledged that the procedure he used was “not a preferred

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method.” Therefore, Defendant is correct in asserting investigators had resources

available to compose a photograph line-up without resorting to the single-photograph

identification.

However, even if the single-photograph identification prior to the photograph

line-up was suggestive, the later identification may still be valid, as noted in Duncan.

As previously discussed in Duncan, there are five factors listed for consideration in

a determination of suggestive identification. Regarding the first factor listed in

Duncan, the victim apparently had ample opportunity to view Defendant. At the

motion hearing, the victim testified that Defendant punched her several times and that

her left eye swelled shut; however, her right eye was fine. Defendant cites her trial

testimony that her attention was not focused on her attacker when he first approached.

However, the victim stated there was enough light to see him in the woods, and she

“had also seen him real good” when they were fighting before he dragged her into the

woods. However, it is not clear how long the offense lasted. At the suppression

hearing, the victim stated it began at approximately 5:55 p.m. Defense counsel

suggested the incident was over by 6:20 p.m.

Regarding the second factor in Duncan, i.e., the victim’s degree of attention,

she testified that she made a conscious effort to observe and remember him. At trial,

she explained that when she realized Defendant was pulling her into the woods, she

“started really, really, really paying attention to his face.” Although Defendant argues

the scene was dark, she testified it was light enough for her to see him clearly.

Further, as mentioned earlier, she got a good look at him before he dragged her into

the woods.

The third Duncan factor is accuracy of the prior identification. The victim

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described her attacker to police as being approximately five feet, eight inches tall, and

between two hundred and twenty and two hundred and fifty pounds. However, she

acknowledged not being good at estimating height or weight. She also stated that the

robber had “droopy cheeks” with no facial hair. However, she did not mention the

“droopy face” characteristic to Detective Rhodes in her initial statement to him. She

also testified that during her prior art training, “one of the things [she] was best at was

faces.” The investigator, Detective Rhodes, testified that he is five feet, eight inches

tall and that Defendant is taller. After viewing a photograph of Defendant from the

local sheriff’s office, the detective acknowledged that identifying information

included with the picture stated Defendant was six feet tall. The victim repeatedly

described Defendant as having “droopy cheeks” much like a cartoon character.

However, Defendant states that he had facial hair and contends that “[h]e does not

have a ‘droopy’ face.” Having viewed the photos of Defendant introduced at the

motion to suppress hearing, we find that Defendant could have easily been described

as “sleepy-eyed,” and we note that his moustache is quite thin.

Defendant makes reference to the victim’s written statement wherein she had

described her assailant as “nondescript.” However, we note that the victim explained

that she meant no scars, birthmarks, or tattoos. Defendant also argues that there was

a discrepancy between the victim’s description of Defendant’s clothing and the

description given by another witness who testified he saw Defendant in the area;

however, we find that that argument was made in the context of sufficiency of the

evidence rather than admissibility.

In his pro se argument, Defendant contends that the victim was unsure whether

the offender wore a tan jacket and gray shirt or vice versa. However, uncertainty on

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such a point does not indicate the victim’s identification of Defendant’s face was

doubtful. Also, the trial judge was able to see Defendant in person and, thus, was in

a better position to evaluate the quality of the identification.

Regarding certainty, the fourth Duncan factor, the victim showed a high degree

of certainty at the motion to suppress hearing and at trial. Detective Rhodes testified

that she showed complete certainty when she identified the man using her ATM card

as her attacker. He stated that she remained certain when she identified him in the

photograph line-up.

With regard to the fifth and final Duncan factor, i.e., the time between the

crime and the confrontation, we note that the crime occurred on December 29, 2007,

and the photographic identifications occurred on January 7, 2008. Thus, the victim

identified the picture of Defendant a little more than a week after the offense.

After a careful review of the record, after due consideration of the testimony

of the witnesses relative to the photographic identifications, and after consideration

of the five Duncan factors, we do not find that the trial court abused its discretion in

denying Defendant’s motion to suppress. Thus, these assignments lack merit.

ASSIGNMENT OF ERROR NO. 2

In his final assignment of error, Defendant argues that his fifty-year sentence

for attempted second degree murder and his forty year sentence for second degree

robbery were excessive. He also argues that the trial court failed to consider

mitigating circumstances as required by La.Code Crim.P. art. 894.1.

Defendant claims that he received the maximum terms on each conviction and

that such terms were unconstitutional. However, the motion did not state exactly why

the terms were unconstitutional; therefore, any claims not specified in his motion are

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barred by La.Code Crim.P. art. 881.1(E). Nevertheless, “in the interest of justice, this

court has previously chosen to review such an assignment of error as a bare claim of

excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41,

writ denied, 06-1233 (La.11/22/06), 942 So.2d 552.” State v. Blue, 08-756, p. 3

(La.App. 3 Cir. 12/10/08) 998 So.2d 1242, 1244.

The analysis for excessive-sentence claims is settled:

This court has previously discussed the standard for reviewing
excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees
that, “[n]o law shall subject any person to cruel or unusual
punishment.” To constitute an excessive sentence, the
reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore,
nothing more than a needless imposition of pain and
suffering. The trial court has wide discretion in the
imposition of sentence within the statutory limits and such
sentence shall not be set aside as excessive absent a
manifest abuse of discretion. The relevant question is
whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808
So.2d 331 (citations omitted)(second alteration in original). “[T]he trial
judge need not articulate every aggravating and mitigating circumstance
outlined in art. 894.1[;] the record must reflect that he adequately
considered these guidelines in particularizing the sentence to the
defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726
So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, the
fifth circuit held that a reviewing court should consider three factors in
reviewing sentences imposed by the trial court: (1) “the nature of the
crime,” (2) “the nature and background of the offender, and” (3) “the
sentence imposed for similar crimes by the same court and other courts.”

State v. Chaisson, 09-119, pp. 25-26 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166,

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1182-83.

With regard to maximum sentences, our courts have stated:

Generally, maximum penalties are reserved for the worst
offenders and the worst offenses. State v. Lathers, 444 So.2d 96
(La.1983). Although obviously harsh, the present sentences appear
warranted by the seriousness of the offenses, defendant’s ample criminal
history, his propensity for recidivism and the very severe injuries
caused. See, e.g., State v. Douglas, 389 So.2d 1263 (La.1980); State v.
Proctor, 354 So.2d 488 (La.1977); State v. Wright, 535 So.2d 765
(La.App. 2d Cir.1988); State v. Weeks, 449 So.2d 1158 (La.App. 2d
Cir.1984), all affirming maximum 99-year sentences for armed robbery.
Similarly, note the affirmance of maximum 30-year sentences for
aggravated burglary in State v. Howard, 414 So.2d 1210 (La.1982);
State v. Lambert, 550 So.2d 847 (La.App. 2d Cir.1989); State v. Harden,
506 So.2d 1265 (La.App. 2d Cir.1987), [writ denied], 512 So.2d 438
(La.1987), and State v. Bibbens, 525 So.2d 255 (La.App. 1st Cir.1988).
Likewise, see Proctor, supra, and State v. Washington, 550 So.2d 698
(La.App. 2d Cir.1989), both sustaining maximum 50-year sentences for
attempted second degree murder.

State v. Grillette, 588 So.2d 1338, 1343 (La.App. 2 Cir. 1991).

In the present case, the sentencing judge stated:

THE COURT:

Mr. Guillory, the crime that you perpetrated upon Ms. Martinez,
who is the victim, was one that was heinous and cowardly. But for the
fact that she pretended or played dead, you might still not have been
apprehended.

At the hearing on the motion to reconsider sentence, defense counsel based his

argument on what he considered as weak identification evidence offered at trial.

Thus, the judge did not have occasion to give any further reasons for the sentence.

The trial court’s reasons for the sentences, although quite brief, fully support

them. After punching her several times, Defendant choked the supine victim. To

save herself, she simulated death. As the trial judge’s brief remarks at sentencing

indicated, it is likely that the victim preserved her own life by pretending to die. The

act of choking another person has been repeatedly recognized as indicative of a

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specific intent to kill. See, e.g., State v. Young, 00-1437 (La. 11/28/01), 800 So.2d

847; State v. Ware, 07-968 (La.App. 3 Cir. 3/5/08), 980 So.2d 730, writ denied,

08-847 (La. 10/31/08), 994 So.2d 534; State v. Durand, 07-4 (La.App. 5 Cir.

6/26/07), 963 So.2d 1028, writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753; State

v. Bernard, 39,579 (La.App. 2 Cir. 4/6/05), 899 So.2d 818.

Thus, in the course of the second degree robbery, Defendant inflicted a brutal

beating on the victim. Her left eye swelled shut, and she suffered a broken ankle

bone. Defendant ended the incident by trying to kill the victim. The victim’s quick

thinking prevented the incident from becoming a completed murder. For these

reasons, we find that the sentences are not excessive.

DISPOSITION

Defendant’s convictions and sentences are affirmed. The trial court is

instructed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to Defendant within thirty days of the rendition of

this opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

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