Randolph Jackson appeals his conviction and sentence for violation of LSA-R.S. 14:64, armed robbery. Jackson was charged by bill of information on April 22, 1985 with two counts of armed robbery which he allegedly perpetrated on November 29, 1984. He pled not guilty, and a jury trial was held on October 28 and 30, 1985, at the opening of which one count was dismissed. On a vote of ten to two the jury found the defendant guilty as charged on the remaining count.
On November 21, the defendant's motion for post-judgment verdict of acquittal and alternate motion for new trial were denied. On December 5, 1985, pursuant to R.S. 15:529.1, Jackson was sentenced as a second offender to thirty-three years at hard labor without benefit of parole, probation, or suspension of sentence. On October 14, 1987, the defendant's motion for out-of-time appeal was granted.
Assignments of Error:
1. The trial court erred in denying defendant's Motion for Post Verdict Judgment of Acquittal which motion was based on the grounds that the evidence was insufficient to justify the verdict.
2. The trial court erred in denying defendant's Motion for a New Trial, which motion was based on the grounds that the Court erred in not granting defendant's request for a mistrial when the State used photographs, not in evidence, in its closing arguments.
3. The trial court erred in denying defendant's Motion for a Special Charge to the jury.
4. The trial court erred in not properly advising the defendant of his rights prior to his being sentenced under the multiple offender statute.
5. The trial court erred in sentencing appellant to an excessive sentence.
6. Any and all errors patent on the face of the record.
On November 29, 1984, Jim Wilson was working as night clerk in a Time Saver store in Jefferson Parish. His account of the robbery for which the defendant was convicted is as follows. At around midnight Wilson and the assistant manager, referred to only as "Joe", were behind the counter counting petty cash and making up a bank deposit in preparation for exchanging shifts. Three black people
He did not close his eyes entirely and watched one of the robbers take the money from the safe and cash register. Wilson identified Randolph Jackson in a photographic lineup and again at trial.
The defendant's alibi is that he spent the entire evening with his niece, Lillian Stevenson, and her boyfriend, Stephen Lewis, in a New Orleans lounge. Both persons testified that the defendant did not leave the lounge from 10:00 p.m. until 4:00 a.m.
The defendant asserts that the evidence was insufficient to justify the jury verdict, and the judge erred in denying the defendant's motion for post-verdict judgment of acquittal.
In assessing the sufficiency of evidence, the due process standard as stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) requires that the reviewing court determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). The Jackson v. Virginia standard has been codified in Louisiana by C.Cr.P. art. 821. Jackson v. Virginia specifically requires the state to present evidence which negates the possibility of a misidentification. State v. Davis, 409 So.2d 268 (La.1982).
The crime of which Randolph Jackson was convicted is armed robbery, which is defined in LSA-R.S. 14:64 as, "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon."
The defendant attacks the identification by Wilson on several grounds. He asserts that it would have been impossible for Wilson to view the perpetrator long enough in the first exposure. Considering Wilson's testimony that he was suspicious of the three people as soon as they came in and moved closer to them to see whether they were shoplifting, we conclude that he got a good view of the defendant at that time. The fact that he could not see the persons' faces later when he was lying on the floor does not negate his having recognized them immediately when they reentered the store only fifteen minutes later. Nearly a year later at trial Wilson positively identified Jackson and testified that he had no doubt at all that the defendant was the same man.
The defendant asserts that the photographic line-up identification was invalid as being suggestive, because Wilson was aware that a suspect's picture was in it. Officer Danny LeBlanc testified that he told Wilson that he "needed him to view some photographs of the incident that had occurred, possibly the perpetrator." Such a statement does not, in itself, constitute suggestiveness, as it is assumed that when a person is asked to view a lineup, a suspect will be included. State v. Knight, 323 So.2d 765 (La.1975); State v. Boutte, 447 So.2d 1229 (La.App. 5th Cir.1984). There being no other complaint about the line-up and as the victim immediately picked out Jackson's picture, we find no problem with the identification.
The testimony of Lillian Stevenson and Stephen Louis as to Jackson's spending the evening with them on the night of the robbery was apparently not believed by the jury. A discrepancy between the accounts of the two witnesses casts doubt on the truth of the alibi. Ms. Stevenson stated that she did not go to work the morning after she had returned home at 4:00 a.m. with Louis and Jackson, because she had a day off, while Louis testified that they talked an hour and a half or two and then she went to work. We note further that Ms. Stevenson testified that the three had not gone out together since. As the credibility of witnesses falls within the discretion of the jury, its verdict will not be disturbed unless it is clearly contrary to the evidence. State v. Richardson, 425 So.2d 1228 (La.1983). We find that the record supports the jury's verdict and find no merit in the assignment of error questioning sufficiency.
Assignment of Error Number 2
The defendant asserts that because the state used photographs not in evidence in its closing arguments, the court erred in denying defendant's motion for new trial.
At the beginning of the state's case, the trial judge sustained the defendant's objection to the introduction of the lineup pictures on grounds of lack of a proper foundation. Detective LeBlanc testified that Wilson wrote his name on the back of the photograph he pointed out as Jackson,
The district attorney's closing arguments clearly went outside the scope of La.C.Cr.P. art. 774, which limits the argument to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." For the district attorney's action to be grounds for mistrial, or for reversal on appeal, there must be a showing that the impropriety influenced the jury and contributed to the verdict. State v. Jarman, 445 So.2d 1184 (La.1984). La.C.Cr.P. art. 921.
Both Detective LeBlanc and Wilson had testified to Wilson's positive identification of the photograph and his writing on the back under questioning by defendant's counsel as well as the district attorney. The jury already knew of the photograph identification so that the district attorney's action did not affect substantial rights of the defendant. State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), writ denied, 433 So.2d 711 (La.1983). Accordingly, we find that this assignment lacks merit.
Assignment of Error Number 3
The defendant asserts that the trial court erred in denying defendant's motion for a special charge to the jury. The defendant requested the following special jury charge:
Failure To Call A Witness With Particular Knowledge.
La.C.Cr.P. art. 807 provides that a special charge "shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent...." It is surmised that the requested charge was based on LSA-R.S. 15:432, which reads as follows in pertinent part:
The reason for requesting the charge was the state's unexplained failure to call "Joe", the assistant manager of the Time Saver, as a witness who was in possession of facts pertinent to the case. The presumption would not have applied in this instance because there is no indication in the record that the witness was in the control of the state. The defense was free to obtain any exculpatory information in the possession of the state under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v. Yarbrough, 418 So.2d 503 (La.1982).
We point out also that the defendant's rights were not prejudiced because his counsel brought the matter to the jury's attention at length in his closing argument. See State v. Collins, 362 So.2d 550 (La. 1978). For these reasons, we find that the assignment is without merit.
In summary, we find that the assignments of error pertaining to the conviction are without merit and we affirm the conviction. The remaining assignments pertain to sentencing.
Assignment of Error Number 4
In this assignment the defendant avers that the court erred in failing to advise him of his rights prior to his being sentenced under the habitual offender statute.
Counsel for the defendant then stated:
As the defendant was represented at trial, at the hearing of the motion for new trial, and in the sentencing proceedings by the same counsel, in all likelihood he was aware of his rights and knowingly agreed to the "double bill"; however, the habitual offender statute must be construed strictly. State v. Simmons, 422 So.2d 138 (La.1982). As explained by the court in State v. Johnson, 432 So.2d 815, 817 (La.1983), R.S. 15:529.1(D)
Here, the court accepted the attorney's statement without repeating the explanation of his rights to the defendant.
Assignment of Error Number 5
The defendant asserts that the sentence is excessive. Although we hold that the defendant must be resentenced, we note that the sentence of thirty-three years at hard labor without benefit of parole, probation or suspension of sentence is not excessive because it is the minimum he could receive under R.S. 14:64 and R.S. 15:529.1(A)(1).
For the reasons assigned above, we affirm the conviction appealed from but vacate the sentence and remand for resentencing.
CONVICTION AFFIRMED, SENTENCE VACATED, REMANDED FOR RESENTENCING.
LSA-R.S. 15:529.1(A) provides for enhanced punishment as follows: