State of Louisiana v. David Billy Parker, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-797

STATE OF LOUISIANA

VERSUS

DAVID BILLY PARKER, JR.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 6566-16
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AFFIRMED IN PART, AMENDED IN PART,
VACATED IN PART, AND REMANDED.

Mary Constance Hanes
Louisiana Appellate Project
Post Office Box 4015
New Orleans, LA 70178-4015
(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
David Billy Parker, Jr.

John F. DeRosier
14th JDC District Attorney
Karen C. McLellan
Assistant District Attorney
Elizabeth B. Hollins
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

In this criminal appeal, David Billy Parker, Jr., (“Defendant”) appeals his

convictions of armed robbery and of false imprisonment with a dangerous weapon.

For the following reasons, we hereby affirm Defendant’s convictions. We vacate

Defendant’s sentence for false imprisonment with a dangerous weapon, and we

remand the case for resentencing with the trial court being instructed to specify

whether the sentence for false imprisonment with a dangerous weapon is to be

served with or without hard labor. Defendant’s sentence for armed robbery is

affirmed as amended to reflect that it is to be served at hard labor, and it is

affirmed as amended. Additionally, the trial court is directed to correctly inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

FACTS AND PROCEDURAL HISTORY:

On September 5, 2014, Defendant held his victim captive at gunpoint during

an armed robbery of Advance America. On February 23, 2016, Defendant was

charged with armed robbery with a firearm, a violation of La.R.S. 14:64.3; armed

robbery, a violation of La.R.S. 14:64; and false imprisonment with a dangerous

weapon, a violation of La.R.S. 14:46.1. The State amended the bill on October 19,

2017, to merge the count of armed robbery with the count of armed robbery with a

firearm.

Trial began on January 23, 2018. Defendant moved for a mistrial on January

24, 2018, based on the testimony of witnesses Belinda Richard and Diana Brown.

The trial court denied the motion at the conclusion of the hearing and denied

Defendant’s request to stay the proceedings pending a writ application to this

court. This court denied Defendant’s writ application on the showing made

because it “[did] not contain all of the testimony and evidence that is or could be

pertinent to the motion for mistrial[.]” State v. Parker, 18-64 (La.App. 3 Cir.

1/26/18) (unpublished opinion). This court also noted Defendant had an adequate

remedy on appeal.1 Id.

The jury found Defendant guilty of armed robbery and of false

imprisonment with a dangerous weapon. Defendant filed motions for new trial and

for a post-verdict judgment of acquittal on March 13, 2018; the motion for new

trial included an argument for mistrial. The trial court denied the motions on

March 14, 2018.

The trial court sentenced Defendant to seventy-five years without benefit of

parole, probation, or suspension of sentence for armed robbery and to ten years for

false imprisonment with a dangerous weapon. The trial court ordered the

sentences to run consecutively to each other and consecutively to prior sentences in

another case for a total of 140 years in jail, with credit for time served.

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 there

are three errors patent.

First, the court minutes of sentencing indicate Defendant was sentenced to

ten years in the Louisiana Department of Corrections on the false imprisonment

conviction; however, the sentencing transcript does not indicate this. “[W]hen the

minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-

137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62. Because the sentencing transcript indicates the trial judge

1
Although Defendant’s counsel indicated she would file simultaneous writ applications
with this court and with the Louisiana Supreme Court, the supreme court has no record of any
filing.

2

did not designate whether this sentence was imposed with or without hard labor,

we find the sentence is indeterminate. Accordingly, we vacate Defendant’s

sentence for false imprisonment with a dangerous weapon and the case is

remanded for resentencing with the trial court being instructed to specify whether

the sentence is to be served with or without hard labor. State v. Roberson, 06-1568

(La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La. 12/14/07), 970

So.2d 531.

Next, a hard labor sentence was required for Defendant’s conviction of

armed robbery. La.R.S. 14:64. As above, the court minutes indicate this sentence

is to be served in the Louisiana Department of Corrections, but the transcript does

not so indicate. The failure to impose the sentence at hard labor rendered it

illegally lenient. State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166.

Thus, pursuant to La.Code Crim.P. art. 882, we amend the sentence to reflect that

it is to be served at hard labor. See State v. Matthew, 07-1326 (La.App. 3 Cir.

5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09), 7 So.3d 1193.

Finally, the trial court failed to properly advise Defendant of the prescriptive

period for filing an application for post-conviction relief. The trial court informed

Defendant that he had two years from “today” (sentencing) to file an application.

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has

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

relief. Accordingly, we hereby direct the trial court to correctly inform Defendant

of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant contends the trial court abused its discretion in denying his

motion for mistrial after cross-examination revealed the District Attorney’s Office

3

conducted a photo lineup with two eyewitnesses on the morning before they

testified at trial, and the prosecutor failed to disclose the matter or correct the

matter during a bench conference. He argues the State’s misrepresentation

“effectively deprived [him] of the opportunity to prepare a defense to the

identification evidence by employing a different trial strategy, or at the very least,

attacking the identification at a pre-trial motion to suppress.” Defendant contends

he “was unwittingly lead [sic] into bolstering the State’s case by revealing the fact

of a prior identification to the jury,” which did him “considerable prejudicial

harm[.]”

“[A] mistrial shall be ordered, and in a jury case the jury dismissed, when

prejudicial conduct in or outside the courtroom makes it impossible for the

defendant to obtain a fair trial . . . .” La.Code Crim.P. art. 775.

Mistrial is a drastic remedy and, except in instances in which mistrial
is mandatory, is warranted only when trial error results in substantial
prejudice to defendant, depriving him of a reasonable expectation of a
fair trial. State v. Smith, 433 So.2d 688 (La.1983). Whether a mistrial
should be granted is within the sound discretion of the trial court, and
denial of a motion for mistrial will not be disturbed on appeal absent
an abuse of that discretion. State v. Brown, 96-1002 (La.App. 5 Cir.
4/9/97), 694 So.2d 435, 439, writ denied, 97-1251 (La.10/31/97), 703
So.2d 19.

State v. Campbell, 13-130, p. 8 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137, 1141.

Even when a mistrial is warranted, “the failure to grant a mistrial would not result

in an automatic reversal of defendant’s conviction, but would be a trial error

subject to the harmless error analysis on appeal. Trial error is harmless where the

verdict rendered is ‘surely unattributable to the error.’” Id. at 1142 (citations

omitted).

Defendant, both on appeal and in his post-trial motions, relies on State v.

Wallace, 285 So.2d 796 (La.1973). In Wallace, our supreme court reversed the

4

trial court and ordered a mistrial where the victim identified the defendants at trial

after viewing photographic lineups a few days prior to trial. The three defendants

robbed the victim, who immediately reported the crime to police at a nearby café.

Police stopped a car fitting the victim’s description and returned to the café with

the vehicle, the three men riding in it, and a pistol found in the vehicle. Although

the victim identified the pistol, he had no opportunity to identify the three men. He

was never asked to view a lineup.

On the Friday before the Monday trial, the victim was shown two cards,

each of which contained five photographs. The victim identified two of the

defendants. At the trial on Monday, the State’s counsel asked the victim if he

could identify the three men who robbed him; the victim pointed out the three

defendants sitting at the table in the front of the courtroom with their counsel. The

victim testified he was “not quite positive” about his identification of the alleged

driver, and he said a street light was the only illumination at the crime scene. Id. at

797.

The supreme court dismissed the State’s argument that the photo lineup

identification was simply part of its pretrial preparation. Police officers had

shielded the victim from the defendants at the time of their arrest. The State

waited five months, until three days prior to trial, to present the photo lineup. No

photographic identification had been requested from the victim on the two prior

occasions when the case came up for trial. While two of the defendants had been

within feet of the victim during protracted conversations with him and another

witness on both of the prior trial dates, the victim testified he never recognized any

of the defendants on either occasion. Nevertheless, three days after the victim’s

photo identification, he recognized one defendant in the hallway and another one in

5

the courtroom. The court put great weight on the fact that the victim said he was

told the defendants’ photos were among those he viewed, heightening the chance

of misidentification, even though the victim recanted that testimony during the

State’s re-direct examination. Thus, the court opined the photo identification was

tainted to the extent it violated the defendants’ due process rights.

The court next determined the victim’s identification was not supported by

sources other than the photo identification. It found nothing in the circumstances

reported by the victim to substantiate his identification. Although the victim was

able to identify the defendants Nicholas and Wallace, who he had identified at the

photo lineup, at trial, he could not identify the defendant Baker until he saw him

sitting at the defense table at trial. The court concluded the photo lineup

identification of Nicholas and Wallace possibly tainted the in-court identification

of all three defendants. Thus, the court vacated the defendants’ convictions and

sentences and remanded the case to the trial court.

The supreme court distinguished Wallace, 285 So.2d 796, in State v.

Williams, 375 So.2d 364 (La.1979). The Williams defendant contended the trial

court erred when it denied his motion to suppress the victim’s in-court

identification as “tainted by an abortive attempted pretrial identification of the

defendant.” Id. at 369.

The victim could not identify the defendant when, prior to trial, she was

shown a group of photographs, which included the defendant’s picture. However,

she positively identified him at trial. The defendant had the opportunity to

question the victim about the photo lineup. She testified the photographs she saw

did not really look like the defendant, and she could not remember until she saw

him in person at the trial.

6

The supreme court distinguished Wallace, 285 So.2d 796, because the victim

there was told the defendants’ pictures were included in the photo lineups. Further,

the Wallace in-court identification was based on the photo lineup, but in Williams,

375 So.2d 364, the victim could not identify the defendant from his photo.

The Williams court commented, “Even if suggestive identification

procedures are proven by the defense, it is the likelihood of misidentification, and

not the mere existence of suggestiveness, which violates due process.” Id. at 369.

The court noted the five-factor test of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct.

2243 (1977), which balances “the corrupting effect of a suggestive identification.”

Williams, 375 So.2d at 369. Those five factors are:

the witness’ opportunity to view the crime; the degree of attention
paid by the witness; the accuracy of any prior description; the level of
certainty displayed at the confrontation; and the amount of time
between the crime and the confrontation.

Id.

The crime occurred during the day in a well-lit environment. The victim

was face-to-face with the robber, and he made no attempt to hide his features.

They engaged in a protracted struggle, and the victim recalled previous contacts

with the defendant. The victim’s in-court identification was unequivocal even

though the incident was seven months prior to trial, and she was unable to identify

the defendant in the photo lineup. After applying those factors, the Williams court

determined the in-court identification “had a basis independent of any alleged, but

unspecified, improprieties committed during the photographic line-up.” Id. at 370.

In State v. Lynch, 94-543 (La.App. 1 Cir. 5/5/95), 655 So.2d 470, writ

denied, 95-1441 (La. 11/13/95), 662 So.2d 466, one of the victims gave police a

detailed description of the man who robbed him and his wife at gunpoint in their

home. At trial, the victim testified he was ninety percent certain the defendant was

7

that man. On appeal, the defendant argued the trial court should have granted his

motion for mistrial because the State led him to believe the victims could not

identify their assailant, and he suffered prejudice from the in-court identification.

The defendant contended he would have presented a different defense had he

known the victim would identify him at trial. The victim had told the Assistant

District Attorney he thought he could make the identification after looking closely

at the defendant earlier in the trial. The trial court denied the motion for mistrial

after noting “the discovery statutes do not require the State to inform the defense

about identification procedures[.]” Id. at 478.

The first circuit noted:

The discovery rules of the Louisiana Code of Criminal
Procedure are intended to eliminate unwarranted prejudice which
could arise from surprise testimony. Discovery procedures enable the
defendant to properly assess the strength of the state’s case against
him in order to prepare his defense. If a defendant is lulled into a
misapprehension of the strength of the state’s case by the failure to
fully disclose, such prejudice may constitute reversible error. State v.
Johnson, 604 So.2d 685, 691 (La.App. 1st Cir.1992), writ denied, 610
So.2d 795 (La.1993). The articles regulating discovery do not
specifically require the state to provide information concerning a
witness’s ability to identify the perpetrator, and a defendant has no
general constitutional right to unlimited discovery in a criminal case.
See La.C.Cr.P. arts. 716–723; State v. Brossette, 93-1036 (La.App. 3d
Cir. 3/2/94), 634 So.2d 1309, 1317, writ denied, 94-0802 (La.
6/24/94), 640 So.2d 1344.

Id. The first circuit found the State’s discovery responses were not designed to

mislead the defendant. Further, the defendant failed to show how he would have

changed his strategy had he known the victim would identify him. The defendant

had the opportunity to cross-examine the victim and show he had never viewed a

live or photo lineup and had told no one except the State’s counsel he thought he

could identify the defendant. Additionally, testimony showed the victim was not

positive of the identification. The first circuit held the “defendant suffered no

8

substantial prejudice[,]” his right to present a defense was not adversely prejudiced

by the identification, and he did not propose a “viable alternative trial strategy.”

Id.

In State v. Elie, 05-1569 (La. 7/10/06), 936 So.2d 791, the defendant sought

a mistrial because the State failed to provide evidence of his prior convictions. The

supreme court noted the State’s continuing duty to disclose that information under

discovery rules in order “to eliminate any unwarranted prejudice which could arise

from surprise testimony.” Id. at 802. However, the court found:

not every failure by the State to comply with these rules automatically
requires a reversal. Only when such a failure results in prejudice to the
defendant does it constitute reversible error. Thus, in the event the
State failed to comply with the discovery rules, it must be determined
whether the non-disclosure actually prejudiced the defendant and
whether the trial court abused its discretion.

Id. After determining the defendant suffered no prejudice from the discovery

violation, the supreme court reversed the appellate court and held the trial court

correctly denied the defendant’s motion for mistrial.

Here, Defendant directed a discovery request to the State on April 15, 2016.

The request did not seek anything that would have created an ongoing obligation

by the State to produce the photographic lineup or to notify Defendant of the

witnesses’ identification on the morning of their testimony. On August 2, 2016,

the State authorized open file discovery.

The State’s witness Diana Brown testified a man came to the door of

Advance America on September 5, 2014, opened it, and told her someone would

be there to take her payment soon. They spoke for “a couple of minutes[.]” Ms.

Brown told police the man was “about five-six” with “[l]ight brown skin[,]” and

“wearing a blue, they call them ‘Nomex,’ like the suits they wear at the plants.”

He had a short haircut. Ms. Brown saw the man again when she arrived in court to

9

testify at trial. The State’s counsel questioned her about her identification of

Defendant:

Q. Now, do you recall – folks from the district attorney’s office asked
you if you’d be able to recognize him?

A. Uh-huh.

Q. Okay, and when you got in court earlier today to be sworn in did
you get a look at him?

A. Yes.

Q. Okay.

A. Yes, I recognized him.

Q. And do you recognize him?

A. Yes.

Q. Can you point him out in the courtroom as to where he is?

A. He’s sitting right there in the black suit with the white shirt.

Defendant’s counsel referred to this testimony when he cross-examined Ms.

Brown; however, we find that he did not properly represent what she had said.

After a few questions about what happened at the store that day, counsel asked Ms.

Brown:

Q. Now, you just testified a moment ago that folks from the D-A’s
[sic] office approached you about looking at a photo of someone?

A. Uh-huh.

Q. They asked you to identify that photo?

A. Right.

Q. And you knew that was – you picked [Defendant’s] photo?

A. Right.

Q. And you identified him here in court?

A. Right.

10

Q. And that’s why you were called as a witness?

A. Right.

Q. And that photo array – that photo that you saw, that was the first
time that anybody showed you a photo in this investigation?

A. Right.

Q. And it’s been over two years –

A. Yeah.
Q. – since this happened in 2014?

A. Uh-huh, yes.

Q. And you had no reason to think that that day was special in any
way?

A. No.

Q. And you only spoke with that man at the door for a couple of
minutes?

A. Right.

Defendant’s brief argues “[o]n cross-examination, Diana Brown also

revealed that people from the D.A.’s Office showed her a photographic lineup (that

day, January 24, 2018) and that she had picked out the photo of [Defendant].”

However, we find the record shows no such conclusion. Ms. Brown did not testify

someone from the District Attorney’s office approached her about looking at

someone’s photo. She only agreed someone from the District Attorney’s office

asked if she could recognize the man at Advance America. She said she got “a

look at him” when she arrived in court for trial. She recognized the man in the

courtroom and pointed him out to the jury.

Neither the State’s counsel nor Defendant’s counsel ever asked Ms. Brown

if she had viewed a photo lineup or when that might have occurred. Even though

Defendant’s counsel asked Ms. Brown about viewing a “photo array” and about

11

looking at a photo she identified as Defendant’s, he never established when that

viewing may have occurred or about any of the circumstances surrounding it. Ms.

Brown’s testimony provides no basis for Defendant’s argument that the trial court

should have granted a mistrial because she viewed a photo lineup on the morning

of trial when the record fails to show she did. Further, as shown below, if the trial

court erred in denying the motion for mistrial, the error was harmless.

Accordingly, we find Defendant’s complaints about Ms. Brown’s photo

identification of Defendant on the morning of trial lack merit.

Belinda Richard went to Advance America on September 5, 2014, to make a

loan payment. She found the door locked, and a man she had never seen before

came to the door and told her the manager was at Wal-Mart. When asked to

describe the man, Ms. Richard pointed to Defendant, who was sitting at the

defense table. Defense counsel objected, arguing Ms. Richard had not previously

identified Defendant and was never shown a lineup. She contended the in-court

identification was unduly prejudicial, and Ms. Richard had previously given only

“a very generic description at the time when she was first interviewed by officers .

. . .” The State responded that Ms. Richard was not required to give a previous

identification, and Defendant would have the opportunity to cross-examine Ms.

Richard and other witnesses who would also identify Defendant. Shortly

thereafter, the State’s counsel asked Ms. Richard if she recognized the man she

saw at Advance America in the courtroom, and if she could identify where he sat

and what he wore. The trial court recognized the “proper in-court identification of

the defendant[,]” and Defendant made no objection.

The State’s counsel made no reference to Ms. Richard’s prior view of a

photo lineup. On cross-examination, defense counsel established Ms. Richard saw

12

the man at Advance America about five minutes and described him to detectives as

a “not real dark” black male about five feet seven inches tall. When counsel asked

Ms. Richard if detectives presented a photo lineup or pictures to her, she

responded, “Not at that time.” Ms. Richard testified the trial was her first time to

identify Defendant in court, but she said she had identified Defendant from a photo

lineup with six people in it earlier in the day at the District Attorney’s office.

Defense counsel pointed out Ms. Richard saw the man at Advance America for

only five minutes two years prior to trial before she came into court and identified

him. The State’s counsel clarified Ms. Richard chose Defendant’s photo from one

of six she had seen in the lineup.

After Defendant’s counsel moved for a mistrial, the State called Michelle

Ledoux, felony trial assistant for the District Attorney’s office, to testify. She

testified Assistant District Attorney Jacob Johnson, the State’s counsel, asked her

on the day before to determine whether Ms. Richard and Ms. Brown could

recognize Defendant in a photo lineup. She used the same type of photo lineup

used by the Sheriff’s Office. Ms. Ledoux did not suggest the robber’s picture was

in the lineup, point to any numbers, or infer any names.

The State introduced a copy of the photo lineup shown to the witnesses. The

lineup shows six African-American men appearing to be about the same age, with

similar hairstyles and features. Ms. Ledoux testified Ms. Richard and Ms. Brown

both recognized Defendant’s picture in the lineup and pointed to him without

hesitation. Neither thought anyone else in the lineup could have been the robber

she saw at Advance America. Ms. Ledoux’s work was done as part of the State’s

trial preparation and prior to invoking the rule of sequestration. No exculpatory

evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) was

13

elicited during the meetings with the witnesses, conducted separately from each

other.

Applying the five-factor test of Manson, 432 U.S. 98, to Ms. Richard’s

identification, we find that Ms. Richard had a short but ample opportunity to

observe the man at Advance America. She had never seen a man working there

before, and the man acted as if he had never been there before. Ms. Richard had

called to find out the store closed at 7:00 p.m., and she had arrived around 6:30

p.m. Because the circumstances to which Ms. Richard testified seemed unusual to

her, we find this could have caused her to pay greater attention and to observe

details that were different from her usual visits to the store. She described the man

she later learned was the robber in a manner consistent with Defendant’s

appearance. She identified Defendant from the photo lineup without hesitation

after careful consideration of all the photos; she said she knew him immediately,

even though more than three years had passed between the robbery and the trial.

We find nothing was suggestive about Ms. Richard’s identification during her

observance of the photo lineup, and her identification of Defendant was reliable.

Further, Defendant has pointed to no authority to show the State’s obligation

to tell him of the photo lineup identification on the morning of the witnesses’

testimony. The State responded to Defendant’s discovery requests and provided

open file discovery. Ms. Ledoux’s testimony did not indicate any intent by the

State to mislead Defendant or gain an unfair advantage at trial. Defendant has not

shown how or if he was lulled into a misunderstanding of the State’s case against

him by the failure to disclose the photo identification on the morning of trial. As in

Lynch, 655 So.2d 470, Defendant has not shown how he would have changed his

trial strategy had he known of the photo identification that morning. Defendant

14

had the opportunity to cross-examine both witnesses and point out any flaws in

their identification. Thus, we find that the State’s non-disclosure of the

identification did not cause actual and/or substantial prejudice to Defendant. See

Lynch, 655 So.2d 470 and Elie, 936 So.2d 791.

Additionally, if the trial court did err by denying Defendant’s motion for

mistrial, the error was harmless. An error is harmless when “the verdict was surely

unattributable to the error.” State v. Chapman, 96-152, p. 14 (La.App. 3 Cir.

10/9/96), 683 So.2d 1236, 1244, writ denied, 97-583 (La. 9/5/97), 700 So.2d 505.

Other evidence at trial clearly established Defendant as the man who robbed

Advance America. The compelling testimony of Joanna Sanford alone, who spent

an hour and a half in close proximity with Defendant as she feared for her life, was

sufficient to establish Defendant’s guilt beyond a reasonable doubt.2

Ms. Sanford identified Defendant at trial as the man who came in her store

showing interest in renting space in the building. He returned two or three hours

later inquiring about a loan and the whereabouts of Ms. Sanford’s co-worker. Ms.

Sanford was alone with Defendant in the store about an hour and a half. Defendant

pulled a gun on Ms. Sanford and threatened to kill her. Defendant met customers

who came to the door while Ms. Sanford lay on the floor behind the counter, and

he told them the store had closed early. He told Ms. Sanford he had to have

$3,000. Eventually, Defendant told Ms. Sanford he would not kill her if he could

take the surveillance system. He said he would kill her and her family if he or

anyone in the group with which he worked was identified.

2
Defendant did not allege insufficiency of the evidence as an assignment of error on
appeal.

15

On January 6, 2017, the State supplemented its discovery response to

include a photographic lineup in which Ms. Sanford identified Defendant as “the

man that robbed [her] at Advance America on Sept. 5, 2014 by gunpoint.” The

identification had been made on December 9, 2015, at 9:02 a.m. at the Longhorn

Restaurant, a truck stop in Vinton.3

The detective in charge of the investigation contacted Ms. Sanford in

December 2015, to say “she thought she had a possible suspect and asked if [Ms.

Sanford] could help them identify him if that was the case. She asked Ms. Sanford

to examine a group of photos “to see if it was possible that the guy who robbed

[her] might be on it.” She instructed Ms. Sanford to look very carefully at each

picture more than once and to make sure she was confident with her answer. Ms.

Sanford doubted the man who robbed her would even be on the photo sheet, even

though she thought it was possible the man who robbed her was in the photo

lineup. The detective “didn’t make any comments, really, except to look

carefully.”

Ms. Sanford “knew immediately which photo was his” when she viewed the

lineup. Nevertheless, she looked at every picture and examined them for about

five minutes, looking at each one more than once. She “was 100 percent sure.”

She testified she would never forget his face. The detective did not lead her to any

particular response. At trial, Ms. Sanford identified Defendant as the man she saw

in her store that day who ultimately robbed her at gunpoint. She also testified she

was “[a] hundred percent” sure the person she chose from the photo lineup was the

man she pointed out at trial.

3
Ms. Sanford lived in Orange, Texas. She and Detective Andree Daugereaux decided to
meet in Vinton so that neither would have to drive as far as they would by meeting in Orange or
in Lake Charles.

16

Detective Andree Daugereaux of the Calcasieu Parish Sheriff’s Office was

the lead detective on this case. About a year after this incident, she was speaking

with other detectives who mentioned another case with similar details. The suspect

in that other case was in jail. Detective Daugereaux asked for a photo lineup to be

prepared, and she presented it to Ms. Sanford.

The detective confirmed Ms. Sanford examined each photograph, putting her

finger on each one and looking at each face twice. Ms. Sanford had no idea of who

the suspect might be. She selected Defendant’s photograph. Detective

Daugereaux said Ms. Sanford “was absolutely positive.”

Detective Dustin Gaudet of the Lake Charles Police Department was

involved in the investigation of an armed robbery at America’s Best Suites on

November 15, 2015, and an armed robbery on November 17, 2015, at “a payday

loan place on Prien Lake Road,” both in Lake Charles. A number of the details of

those robberies matched the details of this incident. Defendant was convicted of

both robberies.

We find that the jury, based on the evidence presented, would have

convicted Defendant even without the testimony of Ms. Brown and Ms. Richard

and without their identification of Defendant in the photo lineup on the morning of

trial. The State did not rely on or use the photo lineup identification of Ms.

Richard and Ms. Brown to prove its case. It had no obligation to tell defense

counsel about the photo lineup identifications. Defense counsel raised the issue of

the photo lineup; once he did, he opened the door for the State to pursue the line of

questions. Defendant has not shown how the witnesses’ viewing of the photo

lineup prejudiced him or how he would have altered his defense had he known of

the viewing or had he not brought it to the jury’s attention. The State did not

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misrepresent the strength of its case by failing to advise Defendant of the photo

identification on the morning of trial. Accordingly, we find that the verdict was

surely unattributable to the trial court’s denial of Defendant’s motion for mistrial,

even if that denial was error.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant argues the non-unanimous jury verdict violated his constitutional

rights. He recognizes Louisiana courts have rejected this argument. However,

“because the United States Supreme Court and/or the Louisiana Supreme Court

may yet revisit the issue[,]” he preserved the issue for appeal.

Louisiana Code of Criminal Procedure Article 782(A) provides a defendant

charged in a case “in which punishment is necessarily confinement at hard labor

shall be tried by a jury composed of twelve jurors, ten of whom must concur to

render a verdict.” This language reflects the provisions of La.Const. art. 1, §17.

The Louisiana Supreme Court has held La.Code Crim.P. art. 782(A) does

not violate the Fifth, Sixth, and Fourteenth Amendments of the federal

Constitution. State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d 738.

Recently, in the November 6, 2018 election, Louisiana voters opted to change the

constitutional provision and require unanimous verdicts. The amendment to

La.Const. art. 1, §17 states:

Section 17. (A) Jury Trial in Criminal Cases. A criminal
case in which the punishment may be capital shall be tried before a
jury of twelve persons, all of whom must concur to render a verdict. A
case for an offense committed prior to January 1, 2019, in which the
punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, ten of whom must concur to render a
verdict. A case for an offense committed on or after January 1, 2019,
in which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, all of whom must concur to
render a verdict.

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Because Defendant’s offense occurred prior to January 1, 2019, the

constitutional amendment does not apply to him. The pre-amendment provision

and La.Code Crim.P. art. 782(A) were not unconstitutional. Thus, we find

Defendant’s assignment of error lacks merit.

DECREE:

In conclusion, we hereby affirm Defendant’s convictions. We vacate

Defendant’s sentence for false imprisonment with a dangerous weapon, and we

remand the case for resentencing with the trial court being instructed to specify

whether the sentence for false imprisonment with a dangerous weapon is to be

served with or without hard labor. Defendant’s sentence for armed robbery is

amended to reflect that it is to be served at hard labor, and it is affirmed as

amended. Additionally, the trial court is directed to correctly inform Defendant of

the provisions of La.Code Crim.P. art. 930.8 at resentencing.

AFFIRMED IN PART, AMENDED IN PART, VACATED IN PART,
AND REMANDED.

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