On May 29, 1974 the defendant was charged by bill of information with the offense of aggravated crime against nature (R.S. 14:89.1), allegedly committed on or about May 11, 1974. On September 24, 1974, after trial by jury, defendant was found guilty as charged. On November 24, 1974 he was sentenced to ten years imprisonment at hard labor. His appeal was lodged in this court on June 30, 1977.
The facts surrounding the offense are as follows. On the evening of May 10, 1974, the victim, a sixteen-year-old girl, and her boyfriend were parked in his car in the rear of Brectel Park, located in Orleans Parish. The two had been on the back seat of the car for a while when they were interrupted
After the victim told her parents what had happened, she was taken to the police station. There she gave the police a description of her assailant and assisted in making a composite picture.
During his investigation of the case, Detective Michael Ling received information from another police officer about a possible suspect. According to this officer the suspect, defendant Ellis Guillot, fit the description given by the victim, had been arrested before for attempted rape, had used a similar method of operation, and owned a red pickup truck. The victim and her companion (who had examined many photographs at the police station) were then shown a photo lineup and the defendant's picture was identified. Shortly thereafter the defendant was arrested at his Jefferson Parish apartment.
Assignment of Error No. 1
During trial, the defendant objected to the State's introduction of evidence of the photographic lineup. A hearing was held outside the presence of the jury for the purpose of determining the admissibility of the identification. The trial judge ruled the evidence inadmissible, on grounds that the lineup was impermissibly suggestive. We denied the State's application for supervisory writs, stating that, "Absent of showing of palpable error of law, irreparable injury, or injustice, this court will not interfere in the orderly trial process of the district court." State v. Guillot, 299 So.2d 803 (La.1974).
The defendant then filed a motion to suppress evidence seized from the defendant (pubic hairs) after his arrest and all subsequent identifications. This assignment was taken to the denial of that motion by the trial court. Defendant argues that because the photographic identification was suppressed, it could not be considered in determining probable cause to arrest. Without the identification, he argues, the arrest was without probable cause and therefore all evidence seized as a result of the arrest should be suppressed as "fruit of the poisonous tree."
We need not reach defendant's contention, however, because, after careful consideration, we hold that the photographic lineup was not violative of the defendant's due process rights and therefore the trial court erred in suppressing it.
On May 17, 1974, six days after the offense, both the victim and her boyfriend were shown, outside each other's presence, a group of six or seven photographs, including one of the defendant. Both made positive identifications of the defendant. The trial judge, at the time of his ruling, stated:
Apparently this ruling was based solely on the trial judge's evaluation of the suggestiveness of the photographs.
In determining the constitutionality of an out-of-court identification, several factors must be considered. First, the suggestiveness of the identification procedure must be evaluated. In the present case, the procedure was not suggestive. The officer conducting the identification first separated the two witnesses. Then, alone in a room with the witness, he showed each of the seven photographs. The photographs used had no distinguishing marks.
Further, the pictures (or persons) used in the lineup should not display the defendant so singularly that the witness' attention is unduly focused upon the defendant. It is often stated that a strict identity of characteristics is not required; rather, a sufficient resemblance to reasonably test the identification is necessary. State v. Gray, 351 So.2d 448 (La. 1977); State v. Anthony, 347 So.2d 483 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977); State v. Hargrove, 330 So.2d 895 (La.1976). This determination is made by examining articulable features of the pictures or persons used:
Even should the identification be considered suggestive, this alone does not indicate a violation of the defendant's right to due process. It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
In Manson v. Brathwaite, supra, a police officer, working undercover, purchased narcotics from "Dickie Boy" Cicero, and then returned to the police station where he described the seller to other officers. A photograph of a person fitting the description given by the officer was placed on his desk and he later, while alone and viewing no other pictures, identified it as that of the seller. The Supreme Court stated:
Applying the Manson analysis to the present case obtains the following:
1. The opportunity to view: The victim was with the defendant for approximately one to one and a half hours; her boyfriend for about twenty-five minutes. Both had the opportunity to view the defendant while riding in the cab of his truck. Although it was night at the time of the incident, the lack of lighting was offset by their close proximity to the defendant and by the length of time spent in his presence. The girl also spent ten to fifteen minutes inside a well lighted apartment with the defendant.
2. The degree of attention: Neither witness was a casual observer; both most certainly had their attention riveted to the defendant.
3. The accuracy of the description: The description given by the victim and the composite picture made with her assistance both matched that of the defendant.
4. The witness' level of certainty: Both witnesses made positive identifications.
5. The time between the crime and the confrontation: The lineup occurred only six days after the offense was committed.
Weighing these indicia of reliability against the marginally suggestive identification process, it is clear that there was not a significant chance of misidentification, and, therefore, the defendant was not denied due process. The police, with the information received concerning the defendant's prior similar acts and the positive identification, had probable cause to arrest the defendant. Therefore, the trial court did not err in denying the motion to suppress evidence seized from the defendant at the time of his arrest. Neither was it error to allow evidence of subsequent identifications.
The assignment is without merit.
Assignments of Error Nos. 2 and 3
After the trial the defendant filed a motion for new trial on grounds that the State failed to introduce evidence on venue. These assignments are based on the denial of that motion.
While the State must prove venue beyond a reasonable doubt, our review is limited to whether there was some evidence on venue submitted to the jury, not to the sufficiency of that evidence. State v. West, 319 So.2d 901 (La.1975); State v. Jackson, 308 So.2d 265 (La.1975). The State did not fail to produce some evidence of venue.
These assignments are without merit.
Assignment of Error No. 4
During the State's closing argument the following occurred:
Defendant contends that the trial judge's remarks constituted a comment on the evidence and that it was error to deny the motion for new trial urging those grounds.
This court has on numerous occasions held that remarks made by the trial judge in the jury's presence giving reasons for his rulings are not objectionable as comments on the evidence provided they are neither prejudicial nor unfair to the defendant. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Taylor, 347 So.2d 172 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977); State v. Young, 337 So.2d 1196 (La.1976); State v. Lane, 302 So.2d 880 (La.1974). While the statement in this case comes close to a comment on the evidence, it does not appear that the defendant was so prejudiced as to require a new trial.
The assignment is without merit.
For the foregoing reasons, the conviction and sentence are affirmed.
TATE, J., assigns concurring reasons.
TATE, Justice, concurring.
I concur in the affirmance of the conviction.
With regard to Assignment of Error No. 1, however, I would overrule on a different basis the motion to suppress evidence (pubic hairs) seized from the defendant after his arrest. The defendant contends that the seizure was illegal, since the arrest resulted from an illegal photographic lineup previously held to be impermissibly suggestive by the trial court.
Nevertheless, the issue before us is far more narrow than the illegality or not of the lineup. Even though it was improperly held, I do not believe that all consequences of the arrest following it are stricken with constitutional invalidity.
The purposes of the exclusionary rule are served by excluding from evidence the improper identification itself. The seizure of pubic hairs after the arrest of the accused is only indirectly connected with the constitutional violation represented by the lineup (they could, for instance, have been taken not only immediately after the arrest but during the trial itself). Therefore, the deterrent policy and individual protections protected by the constitutional provision violated are not served by suppression: The causal connection between the initial unlawful conduct and the evidence sought to be suppressed is so attenuated as to dissipate its initial taint. See State v. Jenkins, 340 So.2d 157 (La.1976). See also, U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
Under the circumstances shown, I think we can reasonably say that the pubic hairs seized were not the fruit of the constitutional violation represented by the lineup, especially considering the non-flagrant nature of official misconduct and its lack of
The invalidity of the lineup should not, by itself, strike with invalidity the consequent arrest; even if it does, then the defendant's complaint should be limited to suppression of any evidence seized incident to the arrest and as an immediate consequence thereof.
In summary, here, the investigation subsequent to the arrest and after booking and Miranda warnings, etc., including the taking of the pubic hairs, should be regarded as insulated from the initial taint of illegality of the lineup by the intervening circumstances and by the attenuated causal connection between the initial illegality and the subsequent seizure, which only indirectly resulted, if at all, from the tainted lineup.